Houston Estate Planning and Elder Law Attorney Blog
Every Texas estate plan starts with a basic question: should you use a will, a revocable living trust, or both? The answer depends on the size and nature of your assets, your family situation, and how much control you want over the distribution process. A will takes effect only after death and must go through probate. A revocable living trust can hold assets during your lifetime, transfer them to beneficiaries after death without probate, and provide a framework for managing your finances if you become incapacitated.
McCulloch & Miller, PLLC helps families in Austin, Houston, and throughout Texas evaluate these options and build estate plans tailored to their goals. The firm’s estate planning attorneys have over 35 years of experience drafting wills and trusts under the Texas Estates Code and the Texas Property Code, and founding partner Thomas McCulloch’s dual JD/CPA credentials bring a tax-planning perspective that strengthens every plan.
What Is a Will in Texas?
A will is a legal document that directs how your property should be distributed after your death. Under Texas Estates Code § 251.001 et seq., a valid will must be in writing, signed by the testator (or at their direction), and attested by two credible witnesses who are at least 14 years old. Texas also recognizes holographic wills — entirely handwritten and signed by the testator — though these can create proof and interpretation challenges.
A will allows you to name an executor, designate who receives specific assets, name guardians for minor children, and specify whether the executor should serve independently or under court supervision. It is the foundational document in most Texas estate plans.
The primary limitation of a will is that it must go through probate before it takes effect. Probate is the court-supervised process of validating the will, appointing the executor, and authorizing the transfer of assets. While Texas probate is generally more streamlined than in many other states, it still involves court filings, a hearing, and a timeline that can range from a few weeks to several months.
What Is a Revocable Living Trust in Texas?
A revocable living trust is a legal arrangement in which you transfer ownership of your assets to a trust during your lifetime. You typically serve as both the trustee (the person who manages the trust) and the beneficiary during your lifetime, retaining full control over the assets. The trust document names successor trustees and beneficiaries who take over after your death or incapacity.
Because the trust — not you individually — owns the assets, those assets do not go through probate when you die. The successor trustee distributes them to the named beneficiaries according to the trust’s terms, without court involvement. This is the primary advantage of a revocable living trust over a will: it avoids the time, cost, and public nature of probate.
McCulloch & Miller, PLLC has helped Austin and Houston families establish revocable living trusts for over three decades. The firm’s trust planning practice addresses not only asset transfer but also incapacity planning, tax efficiency, and coordination with other estate planning documents.
How Do a Will and a Living Trust Compare?
| Feature | Will | Revocable Living Trust |
|---|---|---|
| Takes Effect | After death | Immediately upon creation |
| Probate Required | Yes | No (for assets in the trust) |
| Public Record | Yes (after probate filing) | No — remains private |
| Incapacity Planning | No — requires separate power of attorney | Yes — successor trustee manages assets |
| Guardianship for Minors | Yes | No — still requires a will |
| Cost to Create | Lower | Higher (requires asset re-titling) |
| Flexibility | Can be changed or revoked anytime | Can be changed or revoked anytime |
| Court Supervision | Executor supervised by probate court | Trustee acts without court oversight |
When Does a Trust Make More Sense Than a Will?
A revocable living trust is often the better choice for families with real property in multiple states, significant assets that would make probate more expensive, a desire for privacy (probate records are public in Texas), or concerns about incapacity. If you own property in both Texas and another state, a trust can avoid the need for ancillary probate in each state — a process that multiplies both costs and complexity.
Trusts are also valuable for families with specific distribution preferences. A trust can hold assets for beneficiaries over time — distributing them at certain ages or for certain purposes — rather than transferring everything outright at death. This is particularly useful for families with young children, beneficiaries with special needs, or situations where asset protection is a concern.
For families in Austin and across Travis County, a trust attorney can evaluate whether a trust adds enough value to justify the additional upfront cost of creating and funding it.
When Is a Will Sufficient?
A will may be sufficient for families with modest estates, assets held primarily in joint ownership or with beneficiary designations, and straightforward distribution wishes. Texas probate — particularly independent administration and muniment of title — is relatively efficient compared to many states, which means the cost of probate may be lower than the cost of creating and maintaining a trust.
Even families who choose a trust still need a “pour-over” will — a backup will that catches any assets not transferred into the trust during the grantor’s lifetime and directs them into the trust at death. Every comprehensive estate plan in Texas includes a will, regardless of whether a trust is also part of the strategy.
Frequently Asked Questions
Does a revocable living trust avoid estate taxes in Texas?
No. A revocable living trust does not reduce estate taxes. Because the grantor retains control over the trust assets during their lifetime, those assets are included in the grantor’s taxable estate. Texas does not impose a state estate tax, but the federal estate tax may apply to estates exceeding the federal exemption threshold. Irrevocable trusts and other strategies may offer estate tax benefits — an attorney with CPA credentials can evaluate the options.
Can I be my own trustee in Texas?
Yes. Most people who create revocable living trusts serve as their own trustee during their lifetime, retaining full control over the trust assets. The trust document names a successor trustee who takes over if the grantor becomes incapacitated or passes away.
What happens to a revocable trust when the grantor dies?
When the grantor dies, the trust typically becomes irrevocable. The successor trustee is responsible for managing the trust assets, paying any debts or taxes, and distributing the remaining assets to the beneficiaries according to the trust’s terms — all without probate court involvement.
Talk to an Austin or Houston Estate Planning Attorney
Choosing between a will and a revocable living trust is one of the most important decisions in estate planning. The attorneys at McCulloch & Miller, PLLC can help you evaluate your assets, your family’s needs, and your goals to determine which approach — or combination of approaches — provides the right level of protection. The firm serves families in Austin, Houston, and throughout Texas with flat fee options and over 35 years of estate planning experience.
Call (713) 333-8900 or request a consultation online to start the conversation.
This article is for informational purposes only and does not constitute legal advice. Every situation is different — consult with a qualified attorney to discuss your specific circumstances.