Trust vs Will in 2026: What a Pour-Over Will Does Not Control

What each document controls, asset by asset

The question “trust or will?” assumes one document covers everything. It does not. Each asset has a title or a form that decides who gets it, and the will or the trust only controls the assets that title leaves to it. The table reads one reader’s typical holdings, a rental house, an IRA, unlisted fund shares and some insurance and cash, against the statutes and fund documents we saved.

Source: the sections and prospectuses cited in each row, read October 23, 2026. Where a row says what a document “does,” the row reports the statute’s or prospectus’s wording; the grouping into columns is our reading.

Three rows carry the page. The first is the house in a sole name: the pour-over will works, and it still means a court-supervised estate. The second is the IRA, where the form beats every other document and naming the estate is the one choice that does harm. The third is the fund shares, where the fund’s own paperwork limits which of the three tools (TOD form, trust registration, probate) you can use. Our guides to the pieces are the probate guide, the guide to deeding a house into a living trust and the guide to transfer-on-death deeds by state.

The pour-over will: what the statutes say in six states

A pour-over will leaves some or all of the estate to the trustee of a trust. Every state we read allows it, and the statutes are close to uniform on the main point: the devise is valid even if the trust can be amended or revoked, and the property “becomes a part of the trust to which it is given” (California Probate Code 6300(b)). They differ on three things that decide whether the plan works.

Source: the statutes named in the second column, read October 23, 2026. Florida text is the 2026 Florida Statutes (flsenate.gov). The Texas Legislature’s site did not load for us, so the Texas rows come from Internet Archive copies of the Estates Code pages (254.001 as archived in 2024, 251.051 as archived in 2025); we did not compare them with later session laws.

What follows from the table (our reading):

• The trust has to exist, and has to stay. A will that points to a trust that was never signed, or that was later revoked, leaves the devise with nothing to pour into. In five of the six states that means the devise lapses or fails, and the property then passes as the will’s other provisions or intestacy direct.
• Timing differs. California lets the trust document be signed up to 60 days after the will; Florida and Illinois want it to exist when the will is made; Arizona and Texas do not care about order.
• Handwriting. California (Probate Code 6111), Arizona (14-2503) and Texas (251.052) accept a will wholly in the testator’s handwriting without witnesses. Florida says a handwritten will that meets the formalities “shall not be considered a holographic will” (732.502(2)). A handwritten pour-over will is a different bet in each state.
• A tie to your assets. The pour-over only moves what is in your name when you die. It does not reach an IRA with a named person, a joint tenancy, or fund shares with a TOD form.

If an asset was meant for the trust but never retitled, California Probate Code 850(a)(3)(B) lets a trustee petition when “the trustee has a claim to real or personal property, title to or possession of which is held by another.” Whether that fits a given asset is for a California attorney (our reading).

What probate costs on the assets a will controls

The pour-over route puts the retitling gap into the probate inventory, so it is worth knowing what that inventory costs. The two schedules below are statutory text, run through our arithmetic. California fixes the percentages; Florida states them as a presumption and says plainly that the attorney fee is not mandatory.

Source: our arithmetic from California Probate Code 10800 and 10810 (4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, 1 percent of the next $9,000,000, one-half of 1 percent of the next $15,000,000) and Florida Statutes 733.6171(3) (attorney: $1,500 to $40,000, $750 more to $70,000, $750 more to $100,000, then 3 percent to $1,000,000, 2.5 percent to $3,000,000, 2 percent to $5,000,000) and 733.617(2) (personal representative: 3 percent to $1,000,000, 2.5 percent to $5,000,000). Ordinary services only; both statutes allow more for extraordinary services. The executor and the attorney are paid under separate sections.

Four limits on reading that table:

• California runs on gross value. The base is the inventory “without reference to encumbrances or other obligations on estate property” (10810(b)), so a $1,200,000 rental with an $800,000 mortgage is a $1,200,000 base: $50,000 for both fees in our arithmetic. Our California probate fee guide works through the small-estate limits and the sale fees.
• Florida’s numbers are a starting point for a negotiation. The attorney must tell the personal representative in writing that “There is not a mandatory statutory attorney fee for estate administration” and that the presumed fee “is subject to negotiation” (733.6171(2)(b)). The base is “the inventory value of the probate estate assets,” and a protected homestead is not among the assets listed in 733.608(1). See our Florida probate cost guide.
• A funded trust takes the house out of this base, not out of cost. Property titled in the trust is not in the inventory (California 8850(a); 13050(a)(1)). The trust has its own costs, such as the deed and the lawyer’s time; none of that is set by the sections we read, and we did not use attorney fee surveys. Trustee and executor pay by state is in our executor and trustee fee guide.
• Small estates can skip the schedule. California lets a successor act on some items “without procuring letters of administration or awaiting probate of the will” if the estate is under the limit (13100), and Florida allows summary administration of an estate of $150,000 or less, or one where the decedent has been dead more than 2 years (735.201). A house in another state needs its own proceeding; see the ancillary probate matrix.

Federal tax: the two documents do the same thing

For federal tax a will and a revocable trust land in the same place, which is why the choice is rarely a tax choice.

Source: the Code sections named in the last column (United States Code, 2024 edition, govinfo.gov) and Rev. Proc. 2025-32 (irs.gov), read October 23, 2026. Estate tax on any particular estate depends on its total value, gifts made and state law; none is computed here.

The step-up is the same for both, so the fight over “which gets a step-up” is not between a will and a revocable trust. It is between those two and an irrevocable trust that keeps assets out of the estate, which is the Rev. Rul. 2023-2 problem in our revocable vs irrevocable trust guide. Our step-up in basis guide and estate tax exemption guide cover the rest. Section 645 matters after death: the election “shall be irrevocable” once made (645(c)), and where no estate tax return is required the period runs to 2 years after the date of death (645(b)(2)(A)). It is a point for the executor’s tax preparer, not a step the owner takes.

IRAs and fund shares: the form beats the document

IRAs. An IRA is not in your will’s reach if a person is named. The regulation is blunt: “A person that is not an individual, such as the employee’s estate, is not a designated beneficiary” (26 CFR 1.401(a)(9)-4(b)). Publication 590-B (2025) says that “if the beneficiary is the owner’s estate,” the 5-year rule applies when the owner died before the required beginning date, which means the full balance is withdrawn by December 31 of the year containing the fifth anniversary of the death. A pour-over will then moves the money to the trust, but the payout window has already been set by naming the estate.

Naming the revocable trust is the alternative, and Publication 590-B says a trust is not a designated beneficiary, though its beneficiaries are treated as designated if four conditions hold: valid under state law, irrevocable or made irrevocable by its terms at death, identifiable beneficiaries, and the trustee’s documentation to the custodian. A living trust is typically written to become irrevocable at the owner’s death (our reading); whether a given trust and a given custodian clear all four is a question for the attorney and the custodian. Our inherited IRA guide covers the 10-year rule that applies to individuals.

Fund shares. Both prospectuses we read say the same thing, in the same words: a TOD designation “transfers the ownership of the shares to your designated beneficiary upon your death” and “may only be made by individuals, not entities, who are the sole or joint owners with right to survivorship of the shares.” That gives three paths, each with a different document in charge:

• Shares in your name with a TOD form. The named person receives the shares; the will and the trust are not used.
• Shares in your name with no TOD form. They are probate property; a pour-over will sends them to the trustee after administration.
• Shares registered to your trust. The trust controls. Cohen & Steers asks a trust account for a Certification of Investment Powers Form, and says that “Any transfer of Shares by a Participant to a non-Participant will terminate participation in the Plan with respect to the transferred Shares,” so reinvestment on shares moved to a non-participant ends.

Starwood adds a death-specific term for shares that have not been outstanding for 12 months: they are repurchased at 95 percent of the transaction price, and the fund “may waive” that deduction on death, including for shares held through a revocable grantor trust, if it receives a written request within 12 months after the death. The request comes from the estate, the person who received the shares, or the trustee. The prospectus controls the fund’s discretion; this is a description, not a promise.

What breaks a pour-over plan

These are the failure points the statutes and documents above point to (our reading):

1. The trust was never signed, or was revoked. The devise has nothing to land in, or lapses (California, New York, Arizona, Texas) or is invalid (Florida).
2. The will fails its formalities. A typed will with fewer than two witnesses does not meet the execution statute in any of the six states. California can rescue a defective will on clear and convincing evidence of intent (6110(c)(2)); we did not look for an equivalent in the other five. California, Arizona and Texas also have the handwriting route described above.
3. The asset was never retitled. It is probate property, with the fee base and delay that implies, and the pour-over catches it only after the court.
4. A form overrides. An IRA beneficiary form, a TOD registration or a survivorship deed ignores both documents.
5. The estate is the named beneficiary of the IRA. Probate and a 5-year payout window follow.
6. The house is in another state. The will may need a second proceeding there. See the ancillary probate matrix.

Which one fits: the decision

These are the situations in which each answer tends to follow from the statutes above (our reading, not a recommendation).

• Everything of size already passes by form or title. If the house is in a revocable trust, the IRA and the fund shares have named individuals, and the rest is cash with a POD payee, the will governs little. A pour-over will is the catch-all.
• A rental or land sits in your name alone and is worth more than your state’s small-estate limit. It is the asset where a funded trust changes the fee base; compare the table above with the cost of deeding it, and check the lender and the property-tax effects in the deed guide.
• You hold unlisted fund shares. Pick one path per fund: TOD for a named person, trust registration for the trust. They exclude each other, and the fund’s own paperwork decides whether the trust is accepted.
• You hold an IRA. The beneficiary form, not the will, sets the payout. Do not leave it blank or name the estate unless that is the plan.
• Your estate is over $15,000,000 in 2026. Neither document moves the federal estate tax; the choice is between these two and trusts that remove assets, which belong in the irrevocable trust guide.

What a reader can do with this

• List every asset and its title. For each one, write whether it is in your name alone, in a trust, in joint names, or has a named beneficiary. Only the first group is controlled by the will.
• Pull each beneficiary form. For every IRA, annuity and policy, read who is named and whether the estate or a trust is named; the form, not the will, decides.
• Ask each fund what it accepts. Does it take a trust registration, what documents does it want, is a TOD form open to you, and what happens to reinvestment on a transfer?
• Put a number on the probate base. Add the assets in your name alone and apply the table above for your state; if the base is small enough for your state’s shortcut, the comparison changes.
• Check the pour-over mechanics. The will must identify the trust, the trust must exist when your state requires, and the witness count must meet the statute; a revoked trust undoes the pour-over in most of the states we read.
• Check the state. Property in two states needs two sets of rules; the six states here are a sample, not the map.

FAQ

Sources, read and saved on October 23, 2026: California Probate Code 850, 5000, 6110, 6111, 6300, 7000, 8850, 10800, 10810 and 13050 and Civil Code 683 (leginfo.legislature.ca.gov, through the Internet Archive); Florida Statutes 689.15, 732.502, 732.513, 733.608, 733.617 and 733.6171 (2026 edition, flsenate.gov); New York EPTL 3-2.1 and 3-3.7 (nysenate.gov, through the Internet Archive); 755 ILCS 5/4-3 and 5/4-4 (ilga.gov, through the Internet Archive); Arizona Revised Statutes 14-2502, 14-2503 and 14-2511 (azleg.gov); Texas Estates Code 251.051, 251.052 and 254.001 (Internet Archive copies of statutes.capitol.texas.gov, 251 as archived in 2025 and 254 in 2024); 26 U.S.C. 645, 1014, 2033, 2038, 2040 and 2042 (United States Code, 2024 edition, govinfo.gov); 26 CFR 1.401(a)(9)-4 (eCFR, current to October 15, 2026); IRS Publication 590-B (2025) and Rev. Proc. 2025-32 (irs.gov); Starwood Real Estate Income Trust Form 424B3 filed February 4, 2026 (SEC accession 0001193125-26-037764); Cohen & Steers Income Opportunities REIT Form 424B3, Supplement No. 1 dated April 15, 2026 (0001193125-26-157074). Fee totals, percentages and the worked examples are our arithmetic from the schedules stated; interpretations marked “our reading” are ours. State law, small-estate limits, other states’ statutes and the terms of any particular will, trust, deed or fund are outside this page. This is analysis of public documents, not investment, legal or tax advice.