Choosing how to protect your assets and provide for your loved ones is one of the most important decisions you can make. In Houston, two of the most common estate planning tools—wills and trusts—help you do just that, but they work in different ways. While both allow you to distribute your property, a will only takes effect after you pass away, whereas a trust can manage assets during your lifetime and beyond.
Choosing the right option depends on your financial situation, long-term goals, and how much control you want over your estate. Here is what you need to know about wills or trusts and how each one can shape your legacy.
What Is a Will?
A will, formally known as a last will and testament, is a legal document that outlines how your property will be distributed after your death. It also allows you to name an executor to manage your estate and carry out your final wishes. If you have minor children, a will lets you designate a guardian to care for them.
Under Texas Estates Code § 251.051, a valid will must be signed in the presence of two competent adult witnesses. However, Texas Estates Code § 254.002 disqualifies any witness who is also a beneficiary unless they meet certain legal exceptions.
While notarization is not required for a will to be legally valid in Texas, attaching a notarized self-proving affidavit (Texas Estates Code § 251.104) can speed up the probate process by eliminating the need for witnesses to testify in court.
What Is a Trust?
A trust is a legal arrangement that allows a trustee to manage assets on behalf of beneficiaries. Unlike a will, a trust can take effect while you are still alive, allowing you to control and distribute your assets both before and after your passing.
The most commonly used type is a revocable living trust, which gives you the flexibility to make changes during your lifetime. Once you pass away, the trust becomes irrevocable, and the trustee distributes assets without the need for probate.
Trusts in Texas are governed by the Texas Trust Code, found in Texas Property Code Title 9. This law outlines the creation, administration, and duties of trustees managing assets on behalf of beneficiaries.
Key Differences Between Wills and Trusts
Probate and Court Involvement
One of the biggest differences between a will and a trust is probate. A will must go through probate, which can take several months or even longer if disputes arise. Probate in Texas is often simpler than in other states, but it still involves court filings, fees, and potential delays.
A trust, on the other hand, allows assets to bypass probate entirely, which means beneficiaries receive their inheritance faster and with fewer legal hurdles. Because the trust is managed privately, it does not become public record, unlike a will.
Privacy and Control
A will becomes a matter of public record once it goes through probate, meaning anyone can access details about your estate. This can be a concern for those who prefer to keep their financial matters private.
A trust, however, remains private and allows for more control over how and when assets are distributed. For example, if you want to provide gradual financial support rather than a lump sum inheritance, a trust can be structured to release funds at specific times or upon meeting certain conditions.
Asset Management in Incapacity
A will only takes effect after death, meaning it does not help if you become incapacitated due to illness or injury. If you only have a will, your family may need to go through a court process to establish guardianship over your finances.
A trust provides continuity in asset management if you become incapacitated. Because assets in a trust are already under the control of a trustee, there is no need for court intervention, and financial affairs can continue without disruption.
Cost and Complexity
Setting up a will is generally easier and less expensive than creating a trust. However, because wills must go through probate, the costs of court proceedings and attorney fees can add up over time.
A trust requires more effort and legal guidance to establish, as assets must be retitled in the name of the trust or the trust must be the beneficiary of the asset. However, the upfront investment often pays off by avoiding probate costs and providing long-term financial benefits.
When Do You Need Both a Will and a Trust?
In trust planning, having both a will and a trust provides the most comprehensive estate plan. A trust is useful for avoiding probate and managing complex assets, while a will serves as a backup to cover any property not placed in the trust.
A pour-over will acts as a safety net—any assets not already placed in your trust during your lifetime will be transferred into it after your passing. Additionally, a will is necessary for other reasons as well. A trust does not name guardians of your minor children. When you have a trust you should do a separate document called a designation of guardian for your minor children, to make sure they are cared for by the person of your choosing.
Which Option Is Best for You?
Choosing between a will and a trust depends on factors such as the size of your estate, your privacy concerns, and how you want your assets distributed.
A will may be sufficient if:
Your estate is simple and does not contain high-value assets
You do not mind your estate going through probate
You don’t have minor children or beneficiaries with problems
A trust may be the better option if:
You want to avoid probate and maintain privacy
You have substantial assets, multiple properties, or a business
You want to make sure assets are protected
You want to control how assets are distributed over time
Whether you choose a will or a trust, having a legally sound estate plan is essential to protecting your assets and ensuring your wishes are honored. Without one, Texas intestacy laws will determine who inherits your property, which may not align with your preferences.
Taking the time to plan now can spare your loved ones unnecessary stress and legal complications later. If you are unsure which option is right for you, speaking with a Houston estate planning lawyer can help you create a tailored strategy that fits your needs.
Secure Your Legacy with a Will or Trust
Planning for the future means making choices that protect your loved ones and your assets. Whether you need a will or a trust plan, having the right estate plan in place can prevent unnecessary legal battles and make sure your wishes are followed.
At Your Legacy Legal Care®, our will and trust lawyers help Houston families create personalized estate plans that provide clarity, security, and peace of mind. Whether you are looking to avoid probate, protect your heirs, or manage your assets efficiently, our team will guide you through your options and help you make informed decisions.
Your online search for “trust lawyers” or “will lawyers” brought you here. Take the next step—call (281) 218-0880 or complete our confidential online form to schedule your strategy session. Together, we will build an estate plan that reflects your values and secures your family’s future.
While you wait for your strategy session, we invite you to check out our podcast, “Life Happens!”, with estate planning and elder law attorney Kim Hegwood.
We help families plan for the future, protect their loved ones, and guide them through the unexpected.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
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