LAST WILL & TESTAMENT, and 

REVOCABLE TRUSTS

Comparing A Will To A Revocable Trust

Essential components of a comprehensive estate plan are a will, testament, and a revocable living trust; however, each of these functions differently. For instance, a last will and testament can specify final arrangements, nominates a representative to act as executor or executrix, and can state who is to receive a testator’s property upon death. Although not binding on a court, a will can also identify a guardian for surviving minor children. A will becomes effective only on death. 

A trust can be effective during life. A grantor, the creator a trust, decides how and what for what purposes a trust if formed. Often, it is the grantor who controls the trust if it is a revocable living trust and such trust can be revoked at any time. In both the present and the future, the trust can hold title to and ownership of property. And upon the death of a grantor (i.e. the trust creator), a successor trustee is appointed to continue the purposes of the trust. A trust becomes effective when created during life and can continue after death.

When Does A Will Become Effective?

A will becomes effective immediately only after death and does not give one authority to manage your property; however, an executor for the estate will be appointed as recognized by a probate court. In Texas, unless you’re a small estate less than $50,000, will have to go through probate. Most wills do need probate.  Our Dallas will and trust attorneys utilize a team-based approach that benefits from having access to multiple attorneys with substantive years of experience in many practice areas. Whatever your estate or trust needs, our Dallas trust attorneys have the talent, resources and experience to meet them in an efficient, timely, and cost-effective manner.

• Is the probate process private? The probate, and contents of a probate and the assets distributed, will always be public record. In contrast, a trust remains private, and is not public record. 

• Who controls the will process? Except in a small estate administration, a probate judge has control, not the family. A judge’s approval must be received to i) appoint an executor or executrix of the estate; and ii) any guardianship appointment for minor children, if necessary. An executor is a male administrator of a testator’s estate, and an executrix is a female administrator of a testator’s estate

• Must a will own assets to be effective? A will holds nothing during life. While a will requires two signatures from witnesses and must be notarized by the testator in order to be able to distribute assets after death, it does not have to funded during life. A testator’s assets are controlled by the will only upon death and, therefore, title and transfer to heirs only occurs after the estate has been administered. 

• What happens to a will if I'm incapacitated? A will does not have the ability to address matters related to incapacity because it can only become effective after death. 

When Does A Trust Become Effective?

A trust is effective upon creation by the grantor. A trustee manages and distributes assets through the duration of the trust, and a successor trustee continued the purposes of the trust in the event a successor ceases to be able to act for the trust either by way of incapacity, death or quitting the trust. A trust, unlike a will, avoids probate and therefore avoids time and expensive of a legal process. A trust does not need probate.

• Is the trust process private? Given a trust is not subject to probate, it does not require public disclosure as wills do. 

• Who control the trust process? Unlike a will, a judge is not be involved in a trust unless its defective, meaning assets in a trust can be passed through family members immediately. With that said, the grantor in a trust maintains control throughout their lifetime and until a successor trustee is appointed. A trustee, or successor trustee, controls the trust.

• Must a trust own assets to be effective? Unlike a will, a trust must be funded for it to become effective. The trust must hold property. The trust becomes funded when the assets are properly titled and transferred after a grantor forms the trust. Trusts only go into probate when they are either lacking beneficiary or they are not funded. 

• What happens to a trust  if I'm incapacitated? A trust can carry out terms and provisions immediately upon incapacity because it is effective during your lifetime, which includes plans for contingencies and successor appointments. A trust can carry on your wishes during incapacity and beyond death.