Will vs. Trust in Texas: How to Make Administration Easy

To simplify estate planning, we’ve designed the Texan Estate Plan, offering unmatched flexibility and control. It’s a trust-based plan that can function either as a trust-based or a will-based plan, depending on how you choose to use it. This eliminates the need to decide upfront whether a will or trust is the right option for your estate plan.

That being said, here are some reasons we prefer trust planning. While both Wills and Trusts are useful tools, they serve different purposes and offer unique benefits depending on your needs. This article will help explain those differences.

What is a Last Will and Testament?

A Last Will and Testament is a legal document that outlines how you want your assets and property to be managed and distributed after your death. The person who creates the Will is known as the Testator (or Testatrix if female). To carry out your wishes, you appoint an Executor, who is responsible for ensuring that your instructions are followed. This process involves filing a probate application, which is essentially a legal proceeding where the Executor proves the validity of your Will in court.

During probate, the Executor presents evidence to a judge, demonstrating that the Will complies with Texas law and has not been modified or revoked. Once the judge is satisfied, they authorize the issuance of “Letters Testamentary,” which gives the Executor the legal authority to manage and distribute your estate according to your wishes.

What is a Trust?

A Trust is a legal arrangement where one party, known as the Grantor or Settlor, transfers assets to another party, the Trustee, who manages those assets for the benefit of the Beneficiaries. Trusts are typically established while the Grantor is still alive and can outline how assets should be managed both during the Grantor’s life and after their death. In many cases, the Grantor serves as the initial Trustee to maintain control over the assets, with a Successor Trustee named to take over if the Grantor becomes incapacitated or passes away.

The key advantage of a Trust is that it allows for the seamless management of assets without the need for court involvement, which can be particularly beneficial if the Grantor becomes incapacitated or dies.

Will vs. Trust: Key Differences

Both Wills and Trusts facilitate the transfer of assets to beneficiaries, but they differ significantly in how they operate. A Will only takes effect after a judge validates it through the probate process. This means that your assets cannot be distributed until the court has approved your Will. On the other hand, a Trust is established and operational during the Grantor’s lifetime, allowing for the immediate management and distribution of assets without waiting for court approval.

One of the primary benefits of a Trust-based estate plan is that it keeps your financial and personal affairs private and out of the court system.

Why Avoid Probate?

Probate can be time-consuming and costly. In Texas, the probate process requires public notice, and even after this notice period, court dates are often delayed due to backlogs, especially in larger counties. This can lead to significant delays in settling an estate, which can be problematic if the deceased owned a business, had minor children, or held volatile investments. During probate, the Executor cannot act until officially appointed, potentially causing financial strain.

Additionally, probate is a public process, meaning that anyone can access your Will and learn about your assets. This lack of privacy can expose your family to unwanted scrutiny and potential risks. Trusts, on the other hand, are private arrangements, with only the Trustee and Beneficiaries having access to the Trust details.

Trusts are particularly advantageous for those who own property in multiple states, as they can avoid the need for separate probate proceedings in each jurisdiction.

The Role of a Will vs. Trust During Your Lifetime

A Will has no effect while you are alive. It only comes into play after your death and after the court has validated it. In contrast, a Trust can include provisions for managing your assets if you become incapacitated. If you are diagnosed with a condition like dementia, your Trustee can step in to manage your finances and ensure your needs are met without court involvement.

Power of Attorney Documents: An Essential Complement

Whether you choose a Will-based or Trust-based estate plan, it’s crucial to have a comprehensive set of ancillary documents to cover areas not addressed by your Will or Trust. These typically include:

• Statutory Durable Power of Attorney (Financial Power of Attorney): Allows your appointed agent to manage your financial affairs if you become incapacitated.
• Medical Power of Attorney: Designates someone to make medical decisions on your behalf if you are unable to do so.
• HIPAA Authorization: Permits specific individuals to access your medical records.
• Directive to Physicians (Living Will): Outlines your preferences for life-sustaining treatment.
• Declaration of Guardian: Identifies your preferred guardian if you become incapacitated.

While these documents are critical, it’s important to note that financial institutions can reject a Power of Attorney for various reasons, potentially leading to legal guardianship proceedings. Trusts are designed to avoid these complications by providing a more straightforward mechanism for managing your affairs without court intervention.

What Happens if a Power of Attorney Fails?

If a Power of Attorney is not accepted or cannot address a specific situation, guardianship may be necessary. This involves a legal process where the court appoints a guardian to manage the affairs of an incapacitated person, which can be costly, time-consuming, and emotionally challenging for the family. Trusts are structured to minimize the likelihood of needing guardianship by providing clear, court-free mechanisms for managing your assets.

Will vs. Trust Conclusion

To simplify estate planning, we’ve designed the Texan Estate Plan, offering unmatched flexibility and control. It’s a trust-based plan that can function either as a trust-based or a will-based plan, depending on how you choose to use it. This eliminates the need to decide upfront whether a will or trust is the right option for your estate plan.