Why You Need Both a Will and a Trust

A will and trust are both essential components of your Texas estate plan.

Why do you need a trust if you have a will? Or why a will if you have a trust?

This Article will address the essential differences between these two vital Texas estate planning instruments and why they are not alternatives but companions in any estate plan.

What Is the Difference Between a Will and a Trust?

Both a Will and a Trust address the question of what happens to your assets after your death. The primary difference will be whether or not your estate must be “probated.”

With a Will, your estate must still be probated by a Texas Probate Court. This means that your loved one will hire an attorney licensed to practice law in Texas. The attorney will file an application with the proper court. The named executor in your last will and testament will go to a hearing where the Court will determine whether the Will is valid and sign a court order appointing the named executor as the personal representative of the estate.

With a Trust, this will not be necessary if the Trust was properly funded.

However, there are other differences between a Will and Trust that have less to do with probate.

The Function of a Texas Will

The function of a Will under Texas law is to provide for the disposition of your assets and your minor children after your death.

Providing for the future of your children is something that a Trust cannot do.

Further, the Will removes confusion and reduces the possibility of disagreement and legal contests between your family members after you are gone. However, it leaves your assets and wishes subject to the jurisdiction of Texas’ probate and guardianship systems.

That is, a Texas court will still need to “probate” your Will after your death. The court will still have to approve the appointment of a guardian or other caregiver for your children.

While this may sound intimidating, the courts in Texas ensure that your Will complies with state law and that the best interests of your minor children are considered.

In addition, a Will can convey your wishes for the disposition of your remains and  “pour-over” property that was accidentally not in the name of the Trust instrument.

The Advantage of a Trust in Texas

A Texas Trust, on the other hand, automatically distributes the property that you have conveyed to the Trust without the need for approval by a probate judge. This is why it is recommended that if a person owns real estate in multiple states that the individual use a Trust. If the properties are placed in the name of the Trust this will avoid having to probate the Will in multiple jurisdictions.

It is worth remembering that, like a corporation, a Trust is a separate legal entity than yourself. Once created, a Trust exists independently from yourself. Your death will be merely the trigger for the asset distribution described in your Trust instrument.

Likewise, other events specified in the Trust instrument can also serve as triggering events. For example, your sudden incapacity can also trigger the appointment of a family member or other trusted person to make medical decisions.

A Trust is also much harder to contest than a Will. A Will can be easily contested before the probate hearing and the Will becomes public when you submit the Will for Probate. While a Trust is private and because it does not become a public document it is difficult to contest.

In avoiding the probate process, a Trust will result in a smooth transition for your assets, without the opportunity for a lengthy battle in court.

However, a Trust requires funding. The Trustee appointed will incur expenses that must be reimbursed, for instance. It is crucial that your Trust be competently and expertly prepared by a knowledgeable Texas estate planning attorney.

Protect Your Assets and Loved Ones with a Texas Will and Trust

The bottom line is that you need a Will even if you are using a Trust.

If the Trust is found legally deficient in some way or property surfaces that is not included in the Trust, the Will’s “pourover” provision will ensure that property goes where you intend. If you have minor children, a Will ensures that they will be properly cared for.

With your Trust in place, at the same time, you will ensure that your family will not endure a lengthy court battle to move on from your loss.

If you are a Texas resident in need of a Will and Trust, contact us now to schedule your free initial consultation.

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