Call Me Today 361-522-4110

Wills, Trusts, and Estates

What a Will Does:

Most people use a will to leave instructions about what should happen to their property after they die.   However, you can also use a will to

  • Name an executor.

  • Name guardians for children and their property.

  • Decide how debts and taxes will be paid.

  • Provide for pets.

  • Serve as a backup to a living trust.

You should not try to use a will to:

  • Put conditions on your gifts (e.g. I give my house to Erica if she finishes college.).

  • Leave instructions for final arrangements.

  • Leave property for your pet.

  • Make arrangements for money or property that will be left another way (e.g. Property in a trust or property for which you've named a pay-on-death beneficiary.).

What Are the Legal Requirements of a Will:

There are very few legal requirements for wills. To make a will in Texas, you must:

  • Know what property you have and what it means to leave it to someone after your death.   Legally, this is called having "capacity" and it is also known as being “of sound mind;”

  • Create a document that names beneficiaries for at least some of your property;

  • Sign the document; and

  • Have the document signed by two witnesses over the age of 14.

No state requires your will to be notarized, although you may use a notarized self-proving affidavit that will make your will easier to get through probate after your death. I always recommend this course of action as it ensures that the will is probated efficiently.

Texas allows you to make a handwritten “holographic” wills, that don't have to be signed by witnesses. However, handwritten wills should only be used when you do not have time to make a formal will because they are much more susceptible to challenge after your death. These types of wills must be completely written in the testators handwriting (no one can write it for you), and it must be signed by the person writing the will.

 What is a Trust?:

A legal trust is an entity frequently used in estate planning to help a person distribute property or provide for a loved one after they have passed away. The trust is a written set of rules that will determine how, what, when, and where a gift or property is to be distributed to an heir or beneficiary. Because a trust is a legal entity, you must follow the rules outlined in the State of Texas to ensure that the trust is set up correctly, managed by a dependable individual, and properly funded.

Choosing a Trust:

Your first step is to decide what type of trust as they vary depending on when the person receives the property, whether or not you can revoke the trust, and what restrictions you want to place on the trust. The most common types of trusts and their primary purposes include:

  • Testamentary trust: set up to distribute property after you have passed;

  • Inter vivos trust: used if you want to allow a relative to have access to your planned gift or distribution while you are still alive;

  • Revocable trust: you can later reclaim the funds or assets you put into the trust if you decide the trust no longer fits your needs or wishes; and

  • Irrevocable trust: cannot be revoked once it has been established.

In addition to these general categories, you can place restrictions on how your trust will be handled (e.g. if you want a trust to give a $1000 per month to four different people, you can specifically outline this instruction).

Setting Up a Trust:

Once you decide the type of trust best suited for your purposes, you can then proceed to establish the trust. Generally, there are three parts to establishing a trust.

  • Name the beneficiaries: A beneficiary is the person you intend to benefit with the trust. Once the trust is established, the will have a right to have the assets used for their benefit in the way set up within the trust.

  • Name a trustee: If you are setting up trust to distribute a gift after you have died, you should make sure that you name or appoint a reliable person to serve as a trustee of your trust. A trustee controls and manages the trust. An unreliable trustee can upset your plans for distribution or management of fund assets. The trustee will hold the legal title of any assets included with the trust. Legal title is not quite the same as full title.

  • Fund the trust: A trust can be funded by cash or property. Once property is transferred to the trust estate, the assets become part of the trust estate. The trust estate is all of the money and assets which pay for a trust so that the trust can make disbursement to a beneficiary. Some people have assets, like land or automobiles, to fund a trust. However, you can also fund a trust with cash savings or the proceeds from investment property.

 Even though the trustee has the power to manage the assets, their power is limited by the trust. This usually means that the trustee is only allowed to use or sell the property for the benefit of the beneficiary. You can place additional restrictions on a trustee's powers when you establish the trust. Most states will require the beneficiary and the trustee to be separate persons. If done properly, some states will allow the trustee and the beneficiary to be the same person.

Call Me Today

A general practice law firm dedicated to providing my clients with the best legal assistance, I tailor all my services to the individual needs of those I represent. Call me today!

Avvo - Rate your Lawyer. Get Free Legal Advice. Sam Robert Fugate IIReviewsout of 2 reviews