Do I Need a Living Trust in Texas?

Creating a living trust in Texas is a matter of personal choice, but many people find the benefits worthwhile. Your trust keeps your personal business out of the public eye. Wills must go through probate and become public record. A trust is not probated and does not become public record. Your beneficiaries, assets, and trust terms remain private. Trusts are also more difficult to contest than wills, providing greater security. A living trust keeps you in control of your assets during life and after death. During your lifetime the assets are technically owned by the trust but you have total control over them and continue to live in your home and do whatever you wish with the assets. After you die, the assets remain in the trust where they are protected until the dates you have chosen for distribution to your beneficiaries. The trust allows for spaced out and thought out distribution, unlike a will which transfers assets as soon as probate concludes. Your revocable living trust protects you should you become mentally incapacitated. All of your assets are already controlled, owned, and managed by the trust and a conservatorship proceeding is likely unnecessary. While a durable power of attorney can be rejected, a trust cannot be. Your financial life is protected by the trust.

How to Create a Living Trust in Texas: A Complete Guide

Ensure your estate is handled smoothly and your heirs are taken care of. Start a living trust in Texas with these simple steps.

Find out more about Living Trusts

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Brette Sember, J.D.

Brette is a former attorney and has been a writer and editor for more than 25 years. She is the author of more than 40 books, many of them about legal topics. Brette has written, edited, and consulted for a large number of legal outlets, legal websites, legal practice management software companies, online legal service companies, and law firms. She is a national expert on divorce and family law. View her work on her website.

Key takeaways

A Texas living trust manages and distributes assets, avoiding the lengthy probate process, with two types: revocable (amendable and controlled by the grantor) and irrevocable (permanent, offering asset protection and tax benefits).
Creating a living trust involves drafting a trust document in compliance with Texas laws, transferring assets into the trust, and possibly impacting the grantor’s tax situation with no state inheritance or estate tax but subject to federal estate taxes.
Maintaining a living trust in Texas requires regular updates, especially after significant life events. It may involve professional guidance from attorneys and financial advisers to ensure legal compliance and effective estate planning.

Understanding living trusts in Texas

A living trust serves as an important estate planning tool, allowing individuals to:

Manage their assets during their lifetime
Distribute their assets upon death
Avoid the probate process, which the Uniform Probate Code governs in some states

A variety of assets owned by a family allowance for an individual, such as real estate, bank accounts, or personal property, can be transferred into a living trust in Texas. The key advantage of forming a living trust in Texas is to sidestep the often lengthy and expensive probate process, safeguarding your family’s welfare.

Revocable vs. irrevocable living trusts

In Texas, two primary living trusts exist: revocable and irrevocable. A Texas revocable living trust is a flexible and easily amendable legal instrument that enables the grantor to maintain authority over the trust assets while alive, providing various advantages, including potential tax reduction and legal safeguarding for recipients.

On the other hand, a revocable trust can be converted into an irrevocable living trust, which represents a fixed arrangement where property is transferred into the trust, and the grantor relinquishes control. This type of trust can offer enhanced asset protection and tax benefits, as the trust assumes ownership of the assets and pays taxes on them.

Roles involved in a living trust

In a Texas living trust, there are three key roles:

Settlor: Responsible for creating the trust and transferring assets into it
Trustee: Tasked with managing the trust assets and allocating them to the beneficiaries according to the trust’s terms
Beneficiary: Entitled to receive the assets in accordance with the trust’s instructions

The trustee plays a crucial role as many assets in managing and allocating the trust’s assets to the beneficiaries, multiple trustees, based on the specified instructions within the trust document.

Naming a successor trustee is crucial because they manage the trust’s assets and guarantee the trust's beneficiaries the execution of its terms if the original trustee fails to meet their obligations. According to Texas law, you can appoint up to three successor trustees for a living trust.

Deciding if a living trust is right for you

Creating a living trust in Texas is a matter of personal choice, but many people find the benefits worthwhile. Your trust keeps your personal and business interests out of the public eye. Wills must go through probate and become public records. A trust is not probated and does not become a public record. Your beneficiaries, assets, and trust terms remain private. Beliefs are also more difficult to contest than wills, providing greater security.

Benefits of a living trust

One of the main benefits of a living trust is its ability to provide significant protection from the probate court process, resulting in time and cost savings. Moreover, a living trust offers the following benefits:

Maintains confidentiality among involved parties
Avoids the need for a public record of assets and beneficiaries
Allows for more flexibility in managing and distributing assets
Provides for the management of assets in the event of incapacity
Avoids probate court

Furthermore, a living trust allows you to specify how assets are distributed over time, thereby offering enduring financial security for your family. Additionally, a revocable living trust enables the trustee to oversee assets if the grantor experiences mental incapacity, thus eliminating the necessity for court costs of a conservatorship process and ensuring uninterrupted management.

Downsides of a living trust

Before forming a living trust, it’s vital to understand its possible disadvantages. One of the most significant disadvantages to a living trust is the cost. In Texas, it can cost anywhere from $500 to $5,000 to form a living trust. But probate court can also cost that much. Some other downsides to a living trust include:

Drafting a trust document that meets state requirements
Establishing a dedicated trust account
Potential for more time for legal challenges compared to a will
Inability to designate legal guardians for minor children
Inability to confer medical power of attorney

Creating a living trust: Step-by-step process

A parent plays with two children on the floor of their home. A Texas living trust allows you to specify how assets are distributed over time, thereby offering enduring financial security for your family.

Forming a living trust in Texas entails a series of steps. The first step entails drafting and finalizing a trust document as per the specific guidelines set out for Texas. It’s crucial to grasp the process and legal obligations in establishing a living trust in Texas as it can significantly facilitate the creation of legal documents.

The final steps include:

Ensuring all paperwork is complete
Transfer property to the trust by updating documents and filings
Notifying all designated beneficiaries by providing copies of the living trust document

Drafting the trust document

Drafting a trust document is a crucial step in forming a living trust. This legal document involves the settlor naming a trustee, specifying the beneficiaries, and outlining how the assets in the trust will be managed and distributed.

To ensure a Texas trust document is comprehensive and valid. For your trust document to be valid, it should meet the following criteria:

The settlor has the intent to create the trust
The settlor can transfer assets into the trust
The trust complies with the Texas statute of fraud
The trust has a legal purpose

Texas doesn't require that our trust document be notarized. However, having your trust document notarized is a best practice. If your trust includes real estate and real property that needs to be recorded, it is best to have your inherited property trust document notarized.

Transferring assets into the trust

Once the trust document is drafted, the next step is transferring assets into the trust. This transfer of ownership includes real estate, financial accounts, bank accounts, and personal property. Transferring real estate to a living trust in Texas involves signing a deed that transfers the interest in the property to the trust and then recording this deed with the county to formalize the transfer.

A wide range of financial accounts, including bank accounts, can also be transferred to a living trust. Personal property and assets without deeds or titles can be transferred by executing a general transfer document that declares the property as owned by the trust and then submitting it to the trust’s official records.

Navigating taxes and living trusts

Forming a living trust in Texas could significantly impact your tax situation. Here are some key points to consider:

Texas does not impose a state inheritance or estate tax
Individuals may still be subject to federal estate taxes
As of 2023, Texas's federal estate tax exemption is $12.06 million
Assets bequeathed to a surviving spouse are exempt from estate tax liabilities due to the unlimited marital deduction

On the other hand, income from a living trust is subject to state income tax. This means that the income derived from assets in a living trust is taxed as income for the grantor, the beneficiary designated as the individual who established the trust.

Federal estate tax implications

When it comes to federal estate tax:

The exemption for the year 2023 is $12.92 million for individuals and $25.84 million for married couples. This means estates below this threshold cannot pay federal estate tax
The federal estate tax rate may reach up to 40%
It applies to the portion of the estate that exceeds $12 million. For 2024, that figure is $13.61 million.

To reduce federal estate tax liability in Texas, individuals can employ techniques such as gifting assets to others during their lifetime, establishing a marital trust, and using unified credit. Through meticulous planning and the use of a trust, the trust owner gains more significant influence and retains control over asset distribution. The trust owner can also potentially lower the taxable portion of the estate.

State-level tax considerations

In the state of Texas, the income derived from assets in a living trust is subject to taxation as income for the grantor, who is the individual who established the trust. However, tax considerations specific to Texas for living trusts include the nonexistence of a state estate tax and the absence of a state inheritance tax-exempt property name.

Despite the non-imposition of an estate or inheritance tax in Texas, if an individual inherits property from a decedent in a state with an inheritance tax, there could be potential tax implications.

Maintaining and updating your living trust

Keeping your living trust updated and maintained is vital to the process. Revamping a living trust in Texas requires you to:

Secure a trust amendment form
Complete the form
Attach the amendment to the original trust document
Notify the trustee
Retain a copy of the revised trust

Revisiting your living trust every few years or more frequently during significant life changes is advisable.

Making changes to the trust

Amending a revocable living trust usually involves signing a written instrument that specifies the changes. A court order may be needed to authorize the trustee to deviate from the original trust terms in certain situations.

An irrevocable living trust can be modified in Texas under specific circumstances. This may be achievable if the trust instrument permits amendments or if a legal representative, such as a guardian, is authorized to change the trust.

Monitoring asset distribution

Monitoring asset distribution in a living trust involves implementing staggered distributions based on predetermined rules and ensuring that all obligations, such as taxes, are fulfilled before distribution.

A change in financial situation may require the retention of any other significant assets for future distribution to beneficiaries or may affect the administration assuming control of assets in an irrevocable trust, as ownership is forfeited upon their transfer into the trust.

Summary

In conclusion, a living trust is a valuable tool for estate planning in Texas. A living trust can benefit your estate planning attorney by circumventing the often protracted and costly probate process, safeguarding your assets, and potentially reducing tax liabilities. However, it’s crucial to understand the process, the different types of trusts, their benefits and drawbacks, and to regularly review and update your trust to ensure it continues to meet your needs.

Frequently asked questions

A man sits at a table in a coffee shop, looking at his smartphone and reading about Texas living trusts. The living trust is a valuable tool for estate planning in Texas.

How much does it cost to set up a living trust in Texas?

Setting up a living revocable trust in Texas can cost between $750 and $2,500 or more, depending on the complexity and size of the person's estate. It's advisable to consult with a wills and trusts attorney to ensure the estate plan is created correctly.

Can I make my own living trust in Texas?

Yes, you can make your own living trust in Texas by signing a written trust document before a notary public and transferring ownership of trust property and assets to it. Still, it's advisable to consider getting legal assistance to ensure all details of the trust document are correctly addressed.

What is the downside to a living trust in Texas?

The downside to a living trust in Texas can be the high set-up fees, filing paperwork, and regular maintenance fees that may need to be paid every year. These costs are essential when deciding whether to set up a living trust.

Should I put my house in a trust in Texas?

Yes, putting your house in a trust in Texas can help avoid the probate process, maintain privacy, and simplify property transfer. This can be especially beneficial as Texas does not use the Uniform Probate Code.

What is a living trust?

A living trust is a legal tool used in estate planning to manage assets during one's lifetime and distribute them after death. It helps individuals have control over their assets and their distribution.