Dallas Wills and Trusts for Your Family
There are many different aspects to consider when deciding between creating a will and a trust, and a lot depends on your circumstances at the time of creation. A will is a document that controls to whom and where your property is passed along to upon your death, and a trust is a legal device that is used for the management of property. The primary difference between a will and a living trust is that a will requires a court-supervised probate proceeding after a person’s death to administer the estate, whereas assets held in a living trust pass to the designated trust beneficiaries without court involvement.
Just about anyone can benefit from having a will. Having a valid will in place upon your death can help guide the way for the distribution of your estate to those who are left behind. If you have any concern about what happens to your property and who it goes to at your death, then a will is a good option to consider. Currently, Texas recognizes two types of written will: attested wills, and holographic wills.
Attested Wills are the most common type of Last Will and Testament. In order for an attested will to be valid, it has to be in writing, signed by you, or by someone who is in your presence and under your direction. It must be attested in your presence by at least two credible witnesses over the age of 14. These are generally the most effective wills to setup.
A Holographic Will is a will that is completely created in your own handwriting and signed by you as well. Holographic Wills are not required to be signed by any witnesses. Holographic Wills are sometimes considered invalid in a court of law of other states because of the lack of witnesses that other types of wills have.
A trust is a legal device used for the management of property. In a trust, legal title to the property is held by a trustee while the beneficiary has the right to use and enjoy the property.
A living trust is created while the creator is still alive, which is in contrast to a testamentary trust, which happens at or after the creator’s death under the terms of his/her will. The creator of a living trust can choose to make it revocable, which means that it can be changed by the creator prior to his/her death. The other choice in trusts is an irrevocable living trust which is unchangeable by anyone including the creator. For the most part, a living trust is a revocable trust.
Trusts are beneficial should the creator become incapacitated, as the trustees assigned to the trust will continue to manage the trust assets without the need for a court-supervised proceeding.
What is best for you?
Again, this falls under personal preference and your situation at the time of creation. A trust is more expensive to create than a will, and assets will need to be transferred into a trust upon creation for the trust to work. A probate proceeding in Texas, if the executor qualifies as an Independent Executor, is much quicker and generally less expensive than in other states where living trusts are prevalent. These reasons were the primary reason for most Texans to choose wills over living trusts, but that has changed in recent years.
Trusts, while more expensive to create, can save you and your heirs’ money, time, and hardship later down the road. Wills are required to go through probate upon your death and require a court-supervised guardianship proceeding, which can be costly and time-consuming. Since living trusts hold the title to a person’s financial account and have an independent executor, the process is generally done with minimal court supervision.
Additionally, with a Will and a court-supervised probate proceeding, an inventory of your estate will become a matter of public record. A living trust will keep that privately managed and hidden from the public’s eye.
While living trusts are becoming more popular in Texas, please contact a Texas Estate Lawyer and discuss what will be best for your situation.