For a lifetime pour-over trust to be effective via a will, which requirements must the trust satisfy?

• A. The trust must be in writing, signed by the creator and at least one trustee, and either acknowledged like a deed or signed by two witnesses.
• B. The trust must be in existence before the will and be signed by two witnesses.
• C. The trust can be oral if mentioned in the will.
• D. The trust requires nothing if it is referenced in the will.

Answer: (A)

Pour-over trusts rely on a valid trust instrument that meets the Statute of Frauds. In New York, the trust document must be in writing and signed by the creator (the settlor) and at least one trustee, with proper execution either by being acknowledged like a deed or by being signed by two witnesses. This ensures the settlor’s intent and the trustee’s acceptance are clearly evidenced, providing a enforceable basis for transferring assets into the trust at death. If a testamentary pour-over is used, the will can reference the trust, but the trust itself must still satisfy these formalities to be effective; simply calling for a pour-over in the will without a properly executed trust instrument would not be sufficient. An oral trust or a trust that requires no formal execution would not meet the statutory requirements, so those options aren’t viable.