People usually ask me this as a yes-or-no question. Do I need a trust, or is a will fine?
I understand why. It sounds like a product decision, like choosing between two plans at the phone store. But the better question is what you need your estate plan to do. Once you answer that, the choice between a will and a trust usually makes itself.
Some Texans are well served by a will. Plenty of the families I work with need a trust. This post is about telling the two apart.
First, a myth: "probate will ruin your family"
A lot of what you've heard about probate comes from states where it really is slow and expensive. California is the usual example. Its statutory fee schedule ties the executor's and attorney's fees to the size of the estate, and the process can run well over a year.
Texas works differently.
Most Texas wills ask for what's called independent administration. After a short hearing, the court appoints the executor, and from then on that executor can generally collect assets, pay debts, sell property, and make distributions without going back to the judge for permission at each step. There's still an inventory, still notice to creditors, still duties to the beneficiaries. But the court isn't looking over your shoulder the whole way.
Texas also has a shortcut most states don't: probating a will as a muniment of title. When the estate has no unpaid debts other than debts secured by real estate, like a mortgage, and no Medicaid claim, the court can admit the will and let its order serve as the transfer document. No executor, no inventory, no ongoing administration.
So I don't tell people they need a trust to avoid a probate nightmare. In Texas, an uncontested probate with a well-drafted will is usually manageable.
The real case for a trust is narrower and more practical. There are specific jobs a will does poorly or can't do at all.
Five jobs, and which document handles each one
1. Managing your money if you become incapacitated
A will does nothing while you're alive. If you have a stroke or develop dementia, it sits in a drawer.
A living trust keeps working. Assets titled in the trust can be managed by the successor trustee you picked, the day you can't manage them yourself.
You should have a statutory durable power of attorney either way, and Texas law gives it real teeth. Since 2017, a bank or other third party presented with one generally has to accept it, or ask for a certification, translation, or legal opinion, within ten business days, and it can refuse only on limited grounds. In practice, though, institutions still slow-walk them. A trustee who already holds title to the account doesn't need anyone's acceptance.
2. Privacy
A will that's probated becomes part of a public court file. Anyone can pull it.
Texas does soften this a little. In many independent administrations, the executor can file a sworn affidavit instead of a full inventory, so the list of what you owned stays out of the court file (the beneficiaries still get it). But the will itself, with who gets what, is public.
A living trust generally isn't filed with any court.
3. Real estate in another state
This is the one that most often tips the decision.
Real estate is governed by the law of the state where it sits. If you live in Lakeway and own a cabin in Colorado in your own name, your family will likely need a probate here and a second, ancillary probate in Colorado, with a Colorado lawyer and Colorado's rules.
If the cabin is titled in your trust, your successor trustee can usually deal with it without either court.
4. Protecting what your children inherit
To be fair to wills: a will can create trusts for your children too. The difference is timing and process. A trust created in a will doesn't exist until the will is probated, and the assets reach it only after they pass through the estate. With a funded living trust, the structure is already in place and already holds the assets.
Either way, the protection itself can be the same. If you want a child's inheritance to stay out of a divorce, or managed until a certain age, both documents can do it. One just gets there with fewer steps.
5. Blended families and businesses
If you have children from a prior marriage, a child you need to treat differently, or a business that has to keep operating the week after you die, continuity matters. A funded trust lets your successor trustee step in immediately, with authority already in hand, instead of waiting for a hearing and letters from the court.
The jobs side by side
| What you need | Will-based plan | Funded living trust |
|---|---|---|
| Someone to manage your assets if you're incapacitated | Relies on a power of attorney | Successor trustee steps in for trust assets |
| Keep your plan out of the public record | No; a probated will is public | Generally yes |
| Avoid probate in another state | Usually not | Usually yes, if the property is titled in the trust |
| Protect a child's inheritance | Yes, through a trust created at death | Yes, already in place |
| Lower cost now | Yes | No |
| Lower cost and fewer steps for your family later | No | Usually yes |
What a living trust won't do
A few things a living trust does not do, because people often assume it does. A revocable trust doesn't protect your assets from your own creditors while you're alive, and on its own, it doesn't reduce estate tax. The law treats it as yours, because you still control it. That has an upside: assets in your revocable trust generally still get a new tax basis at your death, which can erase built-in capital gains for your heirs.
And if your home goes into the trust, you don't lose your Texas homestead protections. Texas law lets a residence held in a qualifying trust keep both the property tax homestead exemption and the homestead's protection from creditors.
When a will is enough
This is the part I want to say plainly.
If your assets are modest and all in Texas, your family is straightforward, and most of what you own already passes by beneficiary designation (retirement accounts, life insurance, payable-on-death bank accounts), a will-based plan may be the right call. Add a Texas transfer on death deed for your house, and your family may never need to probate much of anything.
A will-based plan costs less. If that's where you land in our first meeting, I'll tell you so.
The part about trusts nobody mentions
A trust only controls what's actually in it.
If your house was never deeded to the trust, the trust can't keep your house out of probate. Most trust-based plans include a pour-over will that sends stray assets into the trust at death, but that will has to be probated to do its job. An unfunded trust gives you the cost of a trust and the result of a will.
This is the most common problem I see in plans people bring in. It's also why our fee includes funding. We prepare and record the deeds for your real estate, and our funding coordinator works with you on your accounts until the trust actually holds what it's supposed to hold. Whichever plan you choose, you get a flat fee in writing before you decide.
A simple way to decide
Go back to the five jobs. Incapacity, privacy, property in another state, protecting your children, and a complicated family or business.
If any of them matters to you, look seriously at a trust. If none of them does, a good will, current beneficiary designations, and a transfer on death deed may be everything you need. That's a perfectly good answer.
For more on how the two work together, see Will? Trust? Why Not Both? and Five Common Myths About Revocable Living Trusts, or read about our estate planning work.
If you'd like to talk through which one fits your family, the first meeting is free, and it's in person at our office in Lakeway.