What is the Difference Between a Will and a Living Trust, and Which One Do I Need?

living trust or will

What Is Probate?

Probate is the court process that takes place after someone dies. During probate, the decedent’s Will is proven valid, then his or her property gets identified, inventoried, appraised, and distributed after any payments to debts and/or taxes. Probate typically involves paperwork and court appearances by attorneys. The estate property pays legal and court fees, which would otherwise go to the decedent’s heirs.

In Texas, a Will generally must be probated. There are different types of formal probate and some simpler procedures, too. An attorney can help decide the best route for your situation. Probate can be quick and easy, or it can be lengthy and complicated. It all depends on the estate and the circumstances involved.

The Texas Probate Code lays out the steps that must be followed:

  • The Will is filed with the court and proven valid or invalid
  • The court appoints an Administrator to the estate
  • The decedent’s property is inventoried and reported to the court
  • Any creditors are given the opportunity to file claims against the estate
  • Assets left after payment of debts and expenses are distributed according to the Will.

The steps may differ slightly depending on which court is involved. If family members want to fight over the Will, the court will hear the disputes and resolve whatever issues exist. If the probate process sounds daunting, you may want to try to avoid it entirely. One way to do that is to set up a Living Trust.

A Will goes into effect only after you die, while a Living Trust takes effect as soon as you create it. A Trust can be used to distribute property before your death or after. Who should consider a Living Trust? It might be right for you if:

  • You want to give someone full authority to manage your assets if you become mentally disabled
  • You own real estate outside Texas
  • You want to keep your estate completely private
  • Your Will is likely to be challenged
  • You own assets that will need to probated, and you want to avoid that

It sounds appealing, but a Trust does have some drawbacks. A Trust is more expensive to set up because it must be actively managed after it’s created. A Trust can only control the assets that have been placed into it.

Some things can be done with a Will, but not with a Trust, such as naming a guardian for your children and specifying funeral arrangements.

Which is right for you? Our experienced attorneys can help you decide. Give us a call at 210-368-9708 or contact us here and schedule your Estate Planning consultation!

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