What Is a Pour-Over Will in Kansas? | Advanced Legal
A pour-over will is a simple will that works alongside a revocable living trust. It is a just-in-case document that directs assets passing through your estate into your trust, including assets that could not have been placed there during your lifetime. Your trust's instructions then govern who benefits, how, and when. Advanced Legal Planning in Derby and Wichita includes a pour-over will in its standard revocable living trust package.
People who set up a trust are often surprised to learn they still need a will. Even diligent Trust Makers can have assets reach their estates through events outside their control. The trust does most of the work, and the pour-over will, is there in case one of those events happens. It may never need to transfer anything at all.
Consider a couple who carefully funds their trust and then dies in a car accident. Months later, an insurance recovery is paid on a survival claim that belonged to one spouse's estate, meaning a claim for that spouse's own injuries before death (K.S.A. 60-1801). That money was never in the trust and could not have been. The pour-over will gives it a route into the trust, where the couple's instructions are recorded.
How does a pour-over will work?
A revocable living trust controls only the assets titled in the trust. Your home, bank accounts, and investment accounts need to be retitled into the name of the trust while you are living. This is called funding the trust.
Some assets may reach your estate through circumstances outside your control. You might receive an outright inheritance that vests shortly before your death, before there is time to transfer it to the trust. Or your estate might receive a medical malpractice or personal injury recovery that is paid after your death. Assets can also be left out by oversight, such as a new car or bank account that was never titled to the trust. Those assets are in your name or your estate's name, and without a will, they would pass under the Kansas laws of intestate succession, which may not match your wishes.
A pour-over will names your trust as the beneficiary of anything left in your individual name. The assets "pour over" into the trust, and your Trustee then distributes them under the same instructions as everything else in the trust. Your plan stays in one place.
Does a pour-over will avoid probate in Kansas?
No. Assets that pass under a pour-over will have to go through probate first, because the will itself has to be admitted by the court before the assets can move into the trust.
Assets that were already titled in the trust before death do not go through probate. That is why funding the trust matters so much. The pour-over will is a “just in case” document we hope to never have to use. It is only there in case an asset somehow ends up outside the control of your trust when you die.
Kansas also has a strict deadline for wills. Under K.S.A. 59-617, a will generally cannot pass property unless a petition to probate it is filed within six months after death, with limited exceptions. If the family waits too long, the pour-over will may not be able to do its job.
For small estates, Kansas has simpler procedures that may avoid a full probate case. Our probate page explains when probate is needed and how Advanced Legal Planning helps families through it.
What assets might need a pour-over will?
Many are assets that arrive through circumstances outside the Trust Maker's control. Assets that were never retitled into the trust can end up here too. Examples include:
An outright inheritance that vests shortly before death, before it can be transferred to the trust.
A medical malpractice or personal injury recovery that belongs to the estate and is paid after death.
A tax refund or final paycheck that arrives after death.
A vehicle bought after the trust was signed. Our article on putting your car in a trust in Kansas covers how to handle vehicles.
A bank account opened after the trust was set up.
Real estate bought or inherited later and deeded in an individual name.
Qualified retirement accounts are different. They must stay owned by an individual during the account owner's lifetime, so they are funneled through the trust by beneficiary designation. A pour-over will is not needed for a retirement account or life insurance policy that already names a beneficiary.
What else does a pour-over will do?
A pour-over will often handles a few jobs a trust cannot.
Names a Guardian for minor children. Parents of young children can nominate a Guardian in their will. A trust cannot do that.
Backs up the plan. If something is wrong with how an asset was titled, the pour-over will can still send that asset to the trust.
Can include Medicaid planning for a surviving spouse. A will can also include special provisions for Medicaid planning when one spouse dies while the surviving spouse receives needs-based benefits. In appropriate circumstances, the will can create a specially designed testamentary trust to hold the inheritance without disrupting the surviving spouse's Medicaid eligibility. Federal Medicaid law treats a trust created by will differently from other trusts (42 U.S.C. § 1396p(d)(2)(A)). The testamentary trust must be created through the will itself; simply pouring the inheritance into an existing living trust is not enough. Whether this works depends on the trust's terms and how distributions are made, and it does not protect eligibility for every benefit program.
Why not just rely on the trust alone?
Some assets can reach your estate no matter how carefully the trust was funded and maintained. Without a pour-over will, any asset that is not in the trust passes by intestate succession, which gives it to relatives in an order set by statute. That order may leave out a stepchild, a charity, or a special needs trust you set up for a loved one. Assets that pass outright to a person with a disability can also put their benefits at risk.
A pour-over will keeps everything pointed toward one set of instructions. It costs little to include, and it protects the plan you worked hard to build. Our article on whether a trust actually avoids probate in Kansas explains how funding and the pour-over will work together.
How can you keep assets out of the pour-over will?
A few habits help:
Title new real estate and new bank or investment accounts in the name of the trust when you open or buy them.
Review your accounts once a year to make sure nothing new has been left out.
Keep beneficiary designations on retirement accounts and life insurance consistent with the plan.
Bring any inheritance or gift of property to your attorney so it can be titled correctly.
Update the plan after major life events such as a marriage, a divorce, a death, or a move.
Frequently asked questions
Is a pour-over will the same as a regular will?
A pour-over will is a type of will, and it must be signed with the same formalities as any Kansas will. The difference is that it leaves the remaining estate to your trust instead of to individual people.
Does a pour-over will have to be probated in Kansas?
If assets pass under it, it needs to go through probate, and the petition generally must be filed within six months of death. If everything was already titled in the trust, probate may not be necessary.
Who should be the executor of a pour-over will?
Many people name the same person who will serve as successor Trustee. That keeps one person in charge of moving the assets into the trust and administering them.
Do I still need a pour-over will if my trust is fully funded?
Yes. Assets can reach your estate through events outside your control, like an inheritance received shortly before death or a personal injury recovery paid after death. The pour-over will directs those assets into the trust.
Build a complete plan with Advanced Legal Planning
A revocable living trust works well with a pour-over will behind it and a funding plan that keeps assets titled in the trust. Advanced Legal Planning helps Kansas families build trusts and wills that work together and keep probate to a minimum. If you are deciding between the two, our article on wills vs. trusts in Kansas is a good place to start. Call (316) 252-2233 or schedule a consultation. Virtual meetings are available upon request.
About Advanced Legal Planning, LLC
Advanced Legal Planning, LLC serves individuals and families across Kansas. Its offices are in Derby and Wichita. The firm is led by Mark A. Galloway, Attorney at Law, who holds dual LL.M. degrees, one in Elder Law from the University of Kansas and one in Tax from Boston University. The firm helps families protect their homes, savings, and legacies for the next generation.
