At various points in our lives, the thought of planning for the future comes to the forefront of every person’s mind. Marriage, having children, and retirement are some of the events which trigger this thinking. At The Tholstrup Law Firm, L.P. our Houston estate planning attorney can provide the legal assistance you need when it comes to trusts and wills.
Understanding Wills & Trusts
Wills and trusts are legal instruments which are commonly thought of when it comes to planning for the future regarding guardianship of minor children and title transfer to property at the appropriate time. There are other, so called “Will Bypass” instruments and methods that should also be considered to minimize effort and cost to transfer title to real and personal property.
Among others, there can be beneficiary designations on financial accounts, titling accounts as “Payable on Death”, and Revocable Transfer on Death Deeds to name a few.
What Happens If You Die without a Will?
The most expensive and time consuming scenario is when no planning is done. If a person dies without a Will, Will Bypass instruments or a Trust, title to the property is conveyed by “Intestate Succession”. Intestate Succession, through a probate proceeding, generally involves an Heirship Proceeding and an Administration of the Estate. With a minimum of estate planning, this time and expense (to those left behind) can be avoided.
To learn more contact our will attorney in Houston at (713) 533-8457.
What Is a Will?
A Will is a legal document. The Texas Estates Code sets out the statutory requirements for a valid Will that can be probated in a Texas probate court. A Will can be simple or complex. Among other things, a Will can address specific bequests (Grandma’s wedding ring), general bequests ($500) and residual (catch all).
In addition, a Will can establish or fund one or more trusts, address inheritance tax minimization, and guardianship for minor children. Even if one has a Trust or maximizes the use of Will Bypass instruments, there should be a Will as a safety net for any property overlooked.
Can an Executor Change a Will?
No, an executor does not have the ability to change a will. Instead, they are responsible for managing the probate process and handling the matters of the estate according to the conditions laid out in the will.
What Would Make a Will Invalid?
The will could be challenged or considered invalid under certain circumstances. This may include if the creation or execution of the will was not done in accordance with Texas law or if the individual signed the will but didn’t have the capacity or wasn’t of sound mind to do so. Additionally, if the individual was under duress, influenced into signing, or deception was used, then it could be considered invalid.
How to Set up a Trust in Texas?
The Texas Trust Code sets out the provisions that can be addressed in a Trust. In Texas, a Trust can even be verbal, however it is not ever recommended. Any provision in a written Trust, not addressed in the writing, defaults to the provisions in the Texas Trust Code. Property in a Trust does not go through the probate process in that the title to Trust property is conveyed to successor beneficiaries by the terms of the Trust.
There are no fees for transfer and there is no required order from the probate court. As a result, the conveyance is not available to the public as is the case in any action that passes through a probate court. In some cases, a Special Needs Trust can be established to provide for a person with disabilities to avoid spend down requirements of Medicare.
What Is the Difference between a Will and a Trust?
While wills and trusts both assist with managing assets in estate planning, the process behind each differs. A will details an individual’s wishes regarding their assets when they pass, and it won’t take effect until that time. Whereas a trust helps control an individual’s assets and, depending on the type of trust, can take effect while they are still alive.
Additionally, wills are required to go through probate, while a living trust does not.
What Types of Trusts Are There in Texas?
If you have decided to create a trust, you will need to consider the type you want to establish. In the state of Texas, this may include, but is not limited to, a testamentary trust, a living (or revocable trust), an irrevocable trust, or special needs trust.
To best understand which type of trust is right for you, don’t hesitate to consult with our Houston estate planning lawyer at The Tholstrup Law Firm, L.P..
The Tholstrup Law Firm, L.P. Can Help - Call (713) 533-8457 Today!
Selecting the appropriate options in Estate Planning is best done with a professional Houston lawyer who can discuss and understand the individual needs of the person wishing to plan for their future. In addition to Wills and Trusts, a person should also review their need for a Powers of Attorney for Financial Transactions, Power of Attorney for Health Care, Appointment of Guardian and Directive to Physicians.
If you need legal advice concerning wills & trusts, contact us online to speak with our Houston trust attorney today.