A pour-over will is a will that leaves some or all of your estate to the trustee of your revocable trust, so anything you did not move into the trust during life ends up governed by the trust's terms after you die. In New York, the rule that makes this work is EPTL § 3-3.7, titled "Testamentary disposition to trustee under, or in accordance with terms of existing inter vivos trust". The statute is short, but each paragraph decides a practical question: which trust document controls, whether later amendments count, and what happens to the gift if the trust no longer exists.

This guide walks through EPTL § 3-3.7 paragraph by paragraph, explains why a pour-over will does not keep assets out of the Surrogate's Court, and shows how the companion funding rule in EPTL § 7-1.18 decides what the trust actually holds.

What does EPTL § 3-3.7 allow a New York will to do?

EPTL § 3-3.7 allows a will to give property to the trustee of a separate trust and have that property administered under the trust's own terms.

"A testator may by will dispose of or appoint all or any part of such testator's estate to a trustee of a trust, the terms of which are evidenced by a written instrument executed by the testator, the testator and some other person, or some other person"

— New York Estates, Powers and Trusts Law (EPTL) § 3-3.7(a)

The same paragraph adds that the gift works "regardless of whether any assets have been transferred to the trust prior to the death of the testator". So a trust that was signed but never funded can still receive the pour-over gift. That flexibility is useful, but as explained below, an empty trust means the whole estate passes through probate first.

Must the trust exist before the will is signed?

Yes, the trust must be signed before the will or at the same time. Paragraph (a) attaches conditions that a drafting attorney should check at the signing ceremony:

"provided that the trust instrument is identified in the will and is executed by the person establishing the trust prior to or contemporaneously with the execution of the will and, unless such person is the sole trustee, by at least one trustee thereof prior to the death of the testator, in the manner required by the laws of this state for the recording of a conveyance of real property or, in lieu thereof, in the presence of two witnesses who shall affix their signatures to the trust instrument."

— New York Estates, Powers and Trusts Law (EPTL) § 3-3.7(a)

In practice, that means three things:

These requirements match the general rule for lifetime trusts in EPTL § 7-1.17(a), which states that "[e]very lifetime trust shall be in writing and shall be executed and acknowledged by the person establishing such trust and, unless such person is the sole trustee, by at least one trustee thereof, in the manner required by the laws of this state for the recording of a conveyance of real property or, in lieu thereof, executed in the presence of two witnesses who shall affix their signatures to the trust instrument."

Can I still amend or revoke the trust after signing a pour-over will?

Yes. Paragraph (b) says the pour-over gift is valid even though the trust can be changed, and it tells the court which version of the trust controls:

"The trust instrument is amendable or revocable, or both, provided, however, that the disposition or appointment shall be given effect in accordance with the terms of the trust instrument, including an amendment thereto, as they appear in writing on the date of the testator's death and, where the testator so directs, including amendments to the trust instrument after his or her death, if the instrument evidencing such amendment is executed and acknowledged in the manner provided for in paragraph (b) of 7-1.17."

— New York Estates, Powers and Trusts Law (EPTL) § 3-3.7(b)(1)

The default rule is the trust as it reads in writing on the date of death. Amendments you sign during life count without re-signing the will. A trust amendment made after death counts only if the will directs it and the amendment is properly executed and acknowledged.

The amendment itself must follow EPTL § 7-1.17(b): "Any amendment or revocation authorized by the trust shall be in writing and executed by the person authorized to amend or revoke the trust, and except as otherwise provided in the governing instrument, shall be acknowledged or witnessed in the manner required by paragraph (a) of this section, and shall take effect as of the date of such execution."

Paragraph (b) also protects the gift where the trust creator keeps control. Under § 3-3.7(b)(3), the gift is valid even though "[t]he trust instrument or any amendment thereto was not executed and attested in accordance with the formalities prescribed by 3-2.1." In other words, the trust does not need will-signing formalities; it needs the trust formalities described above.

What happens to the property once it pours over?

It becomes trust property and is administered under the trust, not under the will. Paragraph (c) is direct about this:

"The property so disposed of or appointed by will becomes a part of the trust to which it is given, and title thereto vests in the trustee to be administered and disposed of in accordance with the terms of the trust instrument."

— New York Estates, Powers and Trusts Law (EPTL) § 3-3.7(c)

This is the reason families use the structure. All distribution terms live in one document, the trust, whether an asset was retitled during life or arrived through the will. For a deeper comparison of the two documents, see our guide to a living trust vs. will in New York.

What if the trust is revoked before death?

If the trust is revoked or terminated before the testator dies, the pour-over gift fails unless the will provides a backup. Paragraph (e) states:

"A revocation or termination of the trust before the death of the testator shall cause the disposition or appointment to fail, unless the testator has made an alternative disposition."

— New York Estates, Powers and Trusts Law (EPTL) § 3-3.7(e)

A failed gift can leave property to pass in a way the testator never planned. We recommend that every pour-over will include an alternative disposition, for example directing the property to be held on the same terms as the trust or naming individual beneficiaries. If you revoke your trust, review the will the same day.

Why do assets left outside the trust still go through probate?

Assets that reach the trust through a pour-over clause pass "by will", in the words of § 3-3.7(c), so the will has to be admitted to probate before the executor can deliver them to the trustee. The pour-over clause changes who receives the property; it does not change how the property leaves your name.

Probate starts with a petition in the Surrogate's Court. Under SCPA § 1402(1), "[a] petition for the probate of a will may be presented by" persons including "any person designated in the will as legatee, devisee, fiduciary or guardian". Once the court admits the will, the executor collects the assets titled in the decedent's name and transfers them to the trustee. Our New York probate and estate administration guide covers each step.

A pour-over will is therefore a safety net, not a probate-avoidance tool. The fewer assets left in your individual name at death, the less the safety net has to catch.

How does EPTL § 7-1.18 decide what the trust actually owns?

EPTL § 7-1.18 makes a lifetime trust valid only as to assets that were actually transferred into it. Signing a trust that lists your house and brokerage account does not move them:

"A lifetime trust shall be valid as to any assets therein to the extent the assets have been transferred to the trust. For purposes of this section, (a) transfer is not accomplished by recital of assignment, holding or receipt in the trust instrument, and (b) in the case of a trust of which the creator is the sole trustee, transfer shall mean in the case of assets capable of registration such as real estate, stocks, bonds, bank and brokerage accounts and the like, the recording of the deed or the completion of registration of the asset in the name of the trust or trustee, and in the case of other assets a written assignment describing the asset with particularity."

— New York Estates, Powers and Trusts Law (EPTL) § 7-1.18

For a self-trusteed revocable trust, that means:

  1. Real estate: a new deed to the trust or trustee, recorded.
  2. Bank, brokerage, stocks and bonds: registration completed in the name of the trust or trustee.
  3. Other property (for example, artwork or jewelry): a written assignment describing the item with particularity.

Anything not transferred this way stays in your individual name and becomes the pour-over will's job. Our article on trust funding in New York explains the retitling process in more detail.

How should a pour-over will and trust be set up together?

Treat them as one plan signed in one sitting, and then fund the trust. A workable sequence:

  1. Sign the trust first, with the formalities in EPTL § 7-1.17(a).
  2. Sign the will in the same meeting or afterward, identifying the trust by name and date, and including an alternative disposition in case the trust is revoked.
  3. Retitle assets into the trust as § 7-1.18 requires: record deeds and re-register accounts.
  4. Keep amendments in writing, executed and acknowledged or witnessed as § 7-1.17(b) requires.
  5. If you ever revoke the trust, update the will at the same time.

If you are deciding whether your trust should be revocable at all, see our comparison of revocable vs. irrevocable trusts in New York.

Talk to us about your pour-over will

Alan Vaitzman, Esq., Managing Attorney of Estate Law New York, drafts and reviews pour-over wills and revocable trusts from our office on the 17th Floor of 299 Broadway, New York, NY 10007. We can check whether your existing will identifies the right trust, whether the trust was properly executed, and which assets still need to be retitled. Schedule a free consultation.

Frequently Asked Questions

What is a pour-over will in New York?

It is a will that leaves property to the trustee of your existing trust, authorized by EPTL § 3-3.7. Property passing under it becomes part of the trust and is administered under the trust's terms.

Does a pour-over will avoid probate?

No. Property that reaches the trust through the will passes by will, so the will must be admitted to probate in the Surrogate's Court before the executor can transfer it to the trustee.

Do I need to sign a new will every time I amend my trust?

Generally no. Under EPTL § 3-3.7(b)(1), the pour-over gift follows the trust terms, including amendments, as they appear in writing on the date of death, provided the amendments are properly executed under EPTL § 7-1.17(b).

What happens to my pour-over will if I revoke my trust?

Under EPTL § 3-3.7(e), revoking or terminating the trust before death causes the pour-over gift to fail unless the will makes an alternative disposition. That is why the will should include a backup gift.

Can my will pour into a trust I sign next month?

No. EPTL § 3-3.7(a) requires the trust to be identified in the will and executed before or at the same time as the will.

Is my trust funded just because the trust document lists my house?

No. EPTL § 7-1.18 says a listing or recital in the trust instrument is not a transfer; for a self-trusteed trust, real estate requires a recorded deed and accounts require re-registration in the trust's or trustee's name.

Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.