Do I Need A Trust?

Posted by: Adair M. Buckner

I frequently am asked by prospective estate planning clients, "Do I need a trust?" The answer is the classic one: It depends.
For some people a revocable living trust is a very smart estate planning tool, and for others it is a waste of money.
Trusts are promoted in a lot of random general literature that the public receives. They are not a one-size-fits-all solution. Whether setting up a living trust is a good idea for you should be discussed with an estate planning attorney who has full knowledge of your assets, family circumstances, and desires.
Here are some of the pros and cons of creating a revocable living trust.


living trust card

5 Reasons A Living Trust Might Not Be Necessary

1. Probate is not that expensive if you have a good will and competent counsel. 

Often the price charged for creation of a revocable living trust, funding, transfers, and related documents will far exceed the cost of probate for a will that was properly drawn up to provide for independent administration. Competent counsel will also explore with heirs whether there is any alternative to a full probate to accomplish the transfer of assets desired without the expense of a full probate. 

2. Living trusts are not needed by most individuals for estate tax planning.

monopoly house on cash

Unless you have an estate worth more than $11 million per person, you have no need for a living trust to avoid estate taxes. Even if you do have an estate large enough to trigger estate tax considerations, you do not always have to have a living trust to minimize estate tax liability. 

3. You can avoid probate of many assets by placing them in joint tenancy with right of survivorship, beneficiary or payable on death designations.
This is a much simpler way of passing on many assets upon death rather than placing them in a living trust. We urge clients to place as many assets as they can in this form of ownership or beneficiary designation if they want them to pass immediately on their death to someone else.
Unless the beneficiaries are minors or have special needs, you usually really don't need a trust for these assets. Also, the state of Texas has approved a transfer on death deed form to make passage of title to real estate on death much easier.

4. Most probates of properly drawn wills do not require a lengthy process.

The Texas Estates Code continues to be modified to streamline and speed up the probate process. Rarely would lengthy delays be involved in passing on assets through probate. An independent administration under a well-drawn will requires only one hearing and minimal court involvement in the process thereafter. A competent, conscientious executor will move the process along quickly unless there are unusual complications.

5. If assets are not added to the trust as they are acquired, the purpose of having a living trust can be defeated.

Individuals who do set up a revocable living trust have ensure that all assets they want subject to the trust are transferred to it or title is acquired in the name of the trust on a routine basis. Otherwise, a probate in addition to the trust may be necessary to transfer the title, and the expense is multiplied.

3 Reasons You Might Need A Trust 

oil well

1. You own property in different states or many counties in Texas.

One of the best uses of a revocable living trust is to make it easy to pass title to real estate or oil and gas interests held in Oklahoma, New Mexico, Colorado, or any other state in addition to Texas. Even numerous oil and gas interests in counties all over Texas are easier to transfer on death if they are in a trust. 

Without title to real property in other states being held in the living trust, you might be compelled to probate a will in all the different states in which such assets exist.
Not all states have as simplified a probate process as Texas, and they may in fact be much more expensive than Texas's. In this instance, there really may be substantial savings realized by placing these assets in a living trust.

free living trust questionnaire CTA
2. You need special assistance in managing your assets.
Although this same help can be achieved to a large extent through a Power of Attorney, a co-trustee acting with you under a revocable living trust may be the best solution. A co-trustee can help ensure you remain involved but gain the help you need in managing your assets, particularly if ill health is a concern. You can designate a knowledgeable person or firm to aid you in handling the assets of the trust.

3. You want to provide special conditions on receipt of assets that you prefer remain private.

Frequently, clients have concerns about the lifestyles, addiction issues, and other sensitive family issues in whether or not a family member receives inheritance. If this is the case, they may want to place conditions on whether or not or when that person would inherit property.
Such terms in a will must be filed of public record in order to be probated. Many people that those conditions and issues remain private. A trust is the way to accomplish this.

How To Decide If A Trust Is right for you:

  • Seek out an estate planning attorney with knowledge of Texas law to draft the documents.
  • Prepare a full summary of your assets to take to the attorney when you meet. 
  • Advise the attorney of any special situations in your family that might benefit from having a trust.  
  • Avoid using standard forms, kits, or computer software that is one-size-fits-all.

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*The free consultation does not cover actual review of documents or giving legal advice on a specific situation.

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