You have a right to leave money to who you want to and, when you have a will, can leave it to those you want: It is not uncommon to disinherit a family member who would otherwise receive an inheritance if no Will existed. However, your nearest family members (some of whom you may have disinherited) are required to receive a copy of the Will when you die. Clearly you do not want these disinherited people giving your choice of beneficiaries a hard time. Many people rightly resort to disinheriting an heir by bequeathing money using a Trust which has no requirement of placing such family members on legal notice. However, there is one regularly-used shortcut that can defeat your quiet intentions: A Pour-Over Will leaving money to a Trust.
Many people create trusts to avoid the time and costs associated with Probating a Will, save money on taxes and attorney fees, and maintain privacy. However, any property not explicitly named after the trust must be transferred through Probate using the Will since the property is not owned by the Trust. A “Pour-Over” Will states that any of this money that has to be Probated is then transferred to the Trust, thereby “pouring over” the Probated property to the Trust. This is useful when trying to simplify an estate plan and making sure forgotten accounts that were accidentally not transferred to the trust go in the right percentages to the right people.
However, a Pour-Over Will is a BAD idea when trying to avoid legal conflicts if you want a disinherited beneficiary in the dark about the estate. Remember, a Will becomes a public document when you die, whereas a Trust is a private document only privy to the creator, trustee and beneficiaries. But if any forgotten property does pass through Probate (for example, a bank account that was never transferred to the Trust during your life) the Surrogate’s Court will require the Executor to also file the Trust with the Court! The entire intention of keeping your estate secret (using a private Trust) is defeated by trying to take a short cut and creating a Pour-Over Will that requires the Trust to instead be filed publicly.
Instead of creating a Pour-Over Will if you want to disinherit a close family member, create a simple Will which leaves any property that is not owned by the Trust to your desired beneficiaries and state the disinherited individuals are forbidden from serving as Executor of the Will. Then, create a Trust that leaves your property to the people you want to receive it, and make sure to fund that Trust with as much property as possible.
By avoiding Pour-Over Wills that leave money to a Trust you can minimize the chance of a disinherited beneficiary harassing your beneficiaries and contesting your estate desires.
