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POUR-OVER CLAUSE ( P16 OUTLINE) Pour-over Clause- a provision in a will which directs that T’s residue to be disposed of by a specified trust upon T’s death. In essence, when T dies, the residue pours over into the trust. 1. Pour-over clauses can be justified in one of three ways: a. Incorporate by Reference- because the will is referencing the trust to control some of its dispositions (its residue), the trust is incorporated into the will itself so long as the trust was described with sufficient clarity and existed when the will was executed. b. Facts of Independent Legal Significance- the will can dispose of property (its residue) in accordance with the trust because the trust has legal significance independent of it dictating some of the dispositions of the will. c. Uniform Testamentary Additions to Trust Act (UTATA)- a will may dispose of property or appoint all/ part of an estate to a trustee of a trust if the trust: (1) was created prior to or contemporaneously with the will’s execution; (2) was created in compliance with EPTL §7-1.17; and (3) is identified in the will ( EPTL §3-3.7 ). i. NY Rule for Creation of Trusts- every trust shall be in writing, executed and signed by the creator and the creator’s signature must be acknowledged by a notary public ( EPTL §7- 1.17(a) ). ii. UPC Rule- UPC includes trusts which have been created prior to, contemporaneously with and even after the will was executed ( UPC §2-511 ). 2.
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