Planning for your estate means asking questions about protecting your loved ones best and ensuring they can enforce your wishes after you die. One common question is, Do you need a will and a trust?
The answer depends on what you want to accomplish. A will is the basic foundation of most estate plans. Trusts are versatile, adaptable tools that can supplement your will to create a more effective and efficient estate plan.
At Massingill, we understand how overwhelming estate planning can feel. Our mission is to simplify the complicated for our clients so you can focus on the big picture. Based in Austin, Texas, we provide flat-fee estate planning services tailored to each client’s needs.
When you work with Massingill, you benefit from no-nonsense pricing, secure online document access, and a collaborative approach to legal planning. Whether you need to distribute assets, organize your affairs, or leave a lasting legacy, our team is here to help.
What Is a Will?
A will describes how to distribute your property after your death. In your will, you may:
- Designate who will inherit specific assets, such as real estate, personal belongings, and financial accounts;
- Name a guardian for your minor children;
- Appoint an executor who will manage your estate; and
- Make donations to your charity of choice.
When you leave a will, your loved ones take it to probate court to follow your instructions.
What Is Probate?
Probate is the legal process of administering an estate and transferring assets to new owners. It involves:
- Determining whether the deceased person’s will is valid if one exists,
- Identifying and appraising the estate’s assets,
- Paying off outstanding debts and taxes, and
- Distributing the remaining assets to beneficiaries.
The probate process begins with providing the will to the probate court. The court determines whether the will is valid and typically appoints the executor named in the will to manage the estate. The executor is responsible for completing each step of the probate process.
How Do Wills Work?
Creating a valid will in Texas requires meeting specific legal requirements, including:
- Being at least 18 years old;
- Having the mental capacity to understand what it means to create a will;
- Recording the will in written format; and
- Signing it in the presence of two witnesses, who must also sign.
Failing to follow these requirements means your will is invalid, except in limited circumstances. Leaving an invalid will has the same effect as leaving no will: your assets pass according to Texas law instead of your wishes.
While a will is crucial to most estate plans, it only controls probate assets. Some assets are non-probate, meaning they pass to your loved ones without probate court involvement. Your will does not govern accounts with beneficiary designations, such as life insurance policies and retirement plans. Similarly, property held in a trust often bypasses the probate process.
What If You Die Without a Valid Will?
When you die without a valid will, your loved ones still go to the probate court, but the state’s intestate succession laws determine who inherits your property based on what living relatives you have. For example:
- If you are married with children, your spouse and children share your estate;
- If you are unmarried and have no children, your property may go to your parents or siblings; and
- If you have no close relatives or those administering your estate cannot locate your close relatives, your estate may pass to your grandparents’ descendants or even to the state.
Intestate succession often does not align with an individual’s wishes, making creating a will essential.
What Is a Trust?
A trust allows one party, the grantor, to transfer assets to another party, the trustee, to manage for the benefit of the beneficiary. While the trustee is the technical owner of the property, they cannot use trust assets for any reason the trust does not authorize. Trusts are tailorable legal instruments that come in many forms, serve varied purposes, and often bypass probate.
Trust Structures
Trusts can serve many purposes, depending on how they are structured. You can structure your trust to be:
- Revocable—can be modified or revoked by the grantor during their lifetime;
- Irrevocable—generally cannot be changed;
- Living (“inter vivos”)—created during the grantor’s lifetime; and
- Testamentary—established in a will.
Testamentary trusts typically require probate, but living trusts usually bypass it.
Trust Types
Trusts are highly versatile and can have many purposes, such as:
- Providing for minors, disabled loved ones, those who struggle with finances, or even pets;
- Managing or reducing taxes and other estate expenses;
- Protecting assets;
- Contributing to charity; and
- Maintaining Medicaid eligibility.
You can also use trusts to plan for specific circumstances, such as funding education or starting a business.
Avoiding Probate with Trusts
While probate allows your loved ones to enforce the wishes you express in your will, it can be time-consuming and costly. Additionally, probate proceedings are part of the public record, allowing others to access financial and personal details about your estate. For those reasons, many people create trusts to allow certain assets to bypass probate.
Do You Need a Will and a Trust?
Knowing what wills and trusts are, we turn to the question at hand: Should your estate plan use a will or trust or both? Ultimately, what you should do depends on your unique circumstances, but many estate plans use both to accomplish more flexible and personal goals.
You might consider including trusts in your estate plan if you:
- Want certain assets to avoid probate;
- Have children or dependents who require ongoing financial support;
- Own property in multiple states and want to simplify its transfer;
- Wish to protect assets from creditors or lawsuits; or
- Have concerns about estate taxes or Medicaid eligibility.
You can also use a pour-over will to combine the benefits of both. A pour-over will directs that any assets not placed into the trust during the grantor’s lifetime be transferred into the trust upon their death. Pour-over wills are a safety net, accounting for assets omitted from your will and allowing a trust to govern what happens to them.
Moving Toward Peace of Mind with Austin Estate Planning Attorneys
Estate planning does not need to be intimidating. At Massingill, we help clients navigate estate planning decisions with confidence. Our team ensures that your estate plan reflects your wishes with flat fees, a collaborative approach, and a commitment to clear communication.
Contact our office today to schedule a consultation with one of our Austin estate planning attorneys.
Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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