Do I Need a Trust If I Have a Will?

Short answer: Not always. A will and a revocable living trust accomplish different things, and many Texans use both. Texas law generally provides that property devised by a lawful will vests at death, subject to debts and estate administration. Yet probate is ordinarily needed to use that will to prove title or the right to possession. A funded revocable living trust can manage assets during life, provide successor management during incapacity and govern trust property after death. The right choice depends on your family, property and goals. (Tex. Est. Code §§ 101.001, 256.001)

What a will does

A will describes who is to receive property at death and who should carry out the estate plan. Most formal Texas wills must be written, signed and witnessed by at least two credible witnesses age 14 or older; qualifying wholly handwritten wills can be valid without subscribing witnesses. Other rules, including capacity, apply. (Tex. Est. Code §§ 251.001, 251.051–251.053)

A will operates at death. By itself, it does not provide someone with authority to manage the maker’s property during a lifetime incapacity.

What a will does not do by itself

• It does not ordinarily serve as proof of title without probate. Property devised by a lawful will generally vests at death, subject to applicable debts and administration. But the will ordinarily must be admitted to probate before it proves title or possession. (Tex. Est. Code §§ 101.001, 256.001)
• It does not override valid nonprobate transfers. Many retirement accounts, life insurance policies and other assets with effective beneficiary designations pass under those arrangements rather than the will.
• It does not create a lifetime incapacity plan by itself. A durable power of attorney and medical directives can serve different functions; a properly funded trust may provide a successor trustee for trust assets.

What a revocable living trust does

A revocable living trust holds or manages assets through a trustee, often the person who created it during that person’s life. Under Texas Property Code § 112.051, the settlor generally may revoke a trust unless it is expressly irrevocable. Amendments and revocations must be in writing if the trust was created by a written instrument; other statutory limitations can apply.

A trust can:

• Provide for incapacity. The trust can name a successor trustee to manage property held in the trust when its initial trustee can no longer serve, according to the trust terms.
• Govern trust property at death. Trust assets are generally managed or distributed under the trust without using a will to prove title, although disputes, debts and other circumstances can still require court involvement.
• Set terms for beneficiaries. For example, it can hold property for a minor child until a stated age or set conditions on distributions. The terms depend on how the trust is written.

Will vs. trust at a glance

A trust only works for what is in it

A trust generally controls the property transferred into it. For a Texas house, that commonly means a properly prepared deed transferring title to the trustee, followed by recording. Merely signing the trust does not automatically retitle the home. Our guide comparing a Lady Bird deed, a TOD deed and a revocable trust explains the home-specific choices. People with living trusts often also execute pour-over wills for assets left outside the trust.

Texas homestead rules can continue to apply to a home held through a qualifying trust if the statutory requirements are met. The details of creditor protection and property-tax exemptions should be reviewed separately. (Tex. Prop. Code § 41.0021)

Situations where people often consider a trust

• You want a plan for who manages your assets if you cannot.
• You own real estate and want to look at ways to pass it other than through the will.
• You have minor children, a beneficiary who needs ongoing oversight, or a blended family.
• You own real estate in more than one state and want to evaluate how to coordinate the estate plan and potential ancillary proceedings.

Situations where a will may be enough

For some people, a will together with beneficiary designations, powers of attorney and other basic documents may meet their goals. Texas also provides alternatives to a full estate administration in appropriate cases, including probate of a will as a muniment of title under Estates Code Chapter 257. The appropriate choice depends on family circumstances, assets, debts and expected administration needs.

Next steps

List your assets, how each is titled, existing beneficiary designations and who should manage them if you cannot. Bring that list to a consultation. Our estate planning practice addresses wills and trusts, and our FAQ hub answers other questions.

Frequently asked questions

Do I need a trust if I already have a will?

Not necessarily. A will and a trust serve different purposes, and many people use both. Whether you need a trust depends on your assets, your family and your goals.

Does a will avoid court in Texas?

A will does not necessarily require a full estate administration, but probate is ordinarily needed to use it as proof of title or possession. A qualifying Texas will may sometimes be admitted as a muniment of title without full administration. (Tex. Est. Code §§ 256.001, 257.001)

Can I change or cancel a revocable trust?

A settlor may generally revoke a trust unless its terms make it irrevocable and may amend a revocable trust within statutory limits. If the trust was created by a written instrument, changes must be in writing. (Tex. Prop. Code § 112.051)

Does a trust work if my house is not in it?

A trust generally governs property transferred into it. For a Texas home, an appropriate deed to the trustee is ordinarily needed; a signed but unfunded trust does not automatically change the house’s title.

What is a pour-over will?

A pour-over will directs qualifying property remaining outside a living trust at death to the trust. Because it is still a will, probate may be needed to transfer property under its terms.

Talk with AWA Law Firm

If you have questions about your situation, call AWA Law Firm at 713-581-1150 or use our contact page. Please do not send confidential information until an attorney-client relationship has been established.

This page provides general information, not legal advice. Reading it or contacting AWA Law Firm does not create an attorney-client relationship. Every situation is different, and the law can change.