Will v. Trust: Which is Right for You?

In Texas, both Wills and Living Trusts are estate planning tools used to manage the distribution of assets after death, but they differ significantly in purpose, administration, and how they affect the probate process.

Here's a breakdown of the key differences:

1. Definition and Purpose

• Will: A Will is a legal document that specifies how your assets will be distributed after your death and names guardians for minor children, if applicable. It only takes effect after you pass away.

• Living Trust: A Living Trust (also called a Revocable Living Trust) is a legal entity created during your lifetime to hold and manage your assets. It can take effect immediately and continue after your death, specifying how and when your assets are distributed.

2. Probate Process

• Will: A Will must go through probate, a court-supervised process to validate the Will, settle debts, and distribute assets. Probate is generally simpler in Texas than in other states, but it can still be time-consuming and public.

• Living Trust: Assets held in a Living Trust avoid probate, allowing for quicker, private, and potentially less costly distribution to beneficiaries.

3. Privacy

• Will: Once probated, a Will becomes a public record, meaning anyone can view its contents.

• Living Trust: A Living Trust is private and does not become a public record, maintaining confidentiality about your estate and beneficiaries.

4. Control During Your Lifetime

• Will: A Will does not provide control over your assets during your lifetime. It only directs the distribution of assets upon death.

• Living Trust: A Living Trust allows you to manage your assets during your lifetime. If you become incapacitated, a successor trustee (someone you appoint) can step in to manage the trust on your behalf without court intervention.

5. Cost and Complexity

• Will: Drafting a Will is generally less expensive and simpler than creating a Living Trust. However, probate costs can offset these initial savings.

• Living Trust: Establishing a Living Trust involves higher upfront costs and more complexity, as assets need to be transferred into the trust. However, it can save time and money later by avoiding probate.

6. Asset Transfers

• Will: Only assets in your name at the time of death are covered by a Will. Beneficiary designations (e.g., for life insurance or retirement accounts) override the terms of the Will.

• Living Trust: Assets must be titled in the name of the trust during your lifetime to be included in the trust's terms. This requires proactive management but ensures a smoother transfer to beneficiaries.

7. Incapacity Planning

• Will: A Will does not address what happens to your assets if you become incapacitated.

• Living Trust: A Living Trust can include asset management provisions if you cannot manage them yourself, avoiding the need for court-appointed guardianship.

Which is Right for You?

• A Will may be better if:

• • You have a modest estate or straightforward wishes.
  • You are comfortable with the probate process.
  • You need a simple and cost-effective solution.

• A Living Trust may be better if:

• • You want to avoid probate.
  • Privacy is a concern.
  • You have significant assets, multiple properties, or beneficiaries with special needs.
  • You want to plan for incapacity.

Each individual’s situation is unique, and a combination of a Will and a Living Trust is often used to achieve comprehensive estate planning goals. Consulting an experienced estate planning attorney in Texas can help tailor a plan to your needs.