Do I Need a Will or
a Trust in Texas?

This is the question I get asked most, and most people asking it have already been sold on the answer before they sit down.

If you have spent any time reading about estate planning online, you have seen the pitch. Probate is slow, expensive, and public. Get a living trust and spare your family the ordeal.

Some of that is true. Very little of it is true in the way people think, and a good deal of it is not particularly true in Texas.

Start with what a will actually does

A will does three things. It directs where your property goes. It names the person who will administer your estate. And if you have minor children, it names who raises them.

Without one, Texas intestacy law makes those decisions for you. The statute sets a fixed order of who inherits, and it does not account for your intentions, your blended family, or the fact that one child has run the business for a decade while the other two have not called in years.

It also does not account for the assumption most couples make about the house. Texas is a community property state, and the intestacy rules treat community property and separate property differently. A surviving spouse does not automatically inherit everything. That one surprises people, and it surprises them at the worst possible time.

The probate argument is weaker in Texas than you have been told

Here is the part most national estate planning content leaves out.

Texas has one of the more efficient probate systems in the country, largely because of independent administration. When a will names an independent executor and waives the bond requirement, that executor can administer the estate with limited court involvement after the initial hearing. No trip to the judge for each sale, each payment, each distribution.

Compare that to states where every step runs through the court and fees scale with the size of the estate. In California, Florida, or New York, "avoid probate" is genuinely sound advice. Much of the estate planning marketing you have read was written with those states in mind and then applied everywhere else.

Texas also offers a procedure called muniment of title. Where there is a valid will and no unpaid debts other than those secured by real property, a court can admit the will for the limited purpose of transferring title, without opening a full administration. It is fast and inexpensive, and most states have nothing like it.

So if your only reason for considering a trust is avoiding probate, and your assets are ordinary Texas assets, the math may not work the way you were told. A well-drafted will with independent administration handles a great many Texas estates cleanly.

Reasonable Texas attorneys disagree with me on this, and some will tell you a trust nearly always pays for itself. Ask whichever attorney you talk to why they hold their position, and see whether the answer is about your situation or about their standard package.

When a trust actually earns its keep

None of that is an argument against trusts. It is an argument against buying one for the wrong reason. There are situations where a trust is clearly the better instrument, and they have little to do with how fast probate moves.

You own real property in another state. This is the strongest practical argument. Real estate is probated where it sits, so a house in Colorado and a condo in Arizona can mean separate proceedings in each state. A trust holding that property avoids the problem entirely.

You want privacy. A will admitted to probate becomes a public record. Anyone can look up what you owned and who received it. A trust does not become public.

You are planning for incapacity, not only death. A will does nothing until you die. A trust can govern what happens if you become unable to manage your own affairs, which is a more likely scenario than most people plan for.

A beneficiary should not receive a lump sum. A young adult, someone with a substance problem, a family member with creditors or an unstable marriage, or a person receiving needs-based benefits. A trust lets you control timing and conditions. An outright gift under a will does not.

Blended families. If you want your spouse provided for during their lifetime with the remainder going to children from a prior marriage, that takes a structure. A simple will leaving everything to your spouse does not accomplish it, whatever the two of you have promised each other.

You own a business. This is where I see the most damage. A business interest passing to heirs who do not agree, with no succession plan and no funded buy-sell agreement, is how good companies get sold at a discount or ground down in litigation.

What most people actually need

For many Texas families, the right plan is a will with independent administration, a financial power of attorney, a medical power of attorney, a directive to physicians, and a HIPAA authorization. That set covers the ordinary situations at a fraction of the cost of a trust-based plan.

For families with out-of-state property, business interests, blended structures, privacy concerns, or beneficiaries who need protection, a trust does work a will cannot.

The right answer depends on facts about your life, not on which product the attorney across the desk sells more of.

The part nobody thinks about

Whichever route you take, the plan only works if you finish it.

I also handle estate and trust litigation, which means I read estate plans after they have already failed. The most common failure is not a poorly drafted document. It is a trust that was created, paid for, and never funded. Nobody retitled the assets into it. The trust exists on paper and owns nothing, the estate goes through probate anyway, and now the family is also arguing about what the trust was supposed to hold.

The second most common failure is a plan that was correct in 2009 and never looked at again. A divorce, a remarriage, a business sale, a move to Texas from a state with different rules. Any of those can turn a good plan into a wrong one.

If you already have documents and cannot remember the last time anyone reviewed them, that review is worth an hour of your time.

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