Living Trusts vs. Wills in Texas
Living trusts and wills are often used by those creating an estate plan. Texas law governs how residents can create and use both and sets forth the procedures involved with them. Talk to an experienced Texas estate planning attorney if you need legal advice about either wills or living trusts.
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Probate
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The reason people create wills and living trusts is because of the probate process and laws surrounding it. Probate is the system of laws and rules that come into place when a person dies leaving behind property. The property must be passed along to new owners, and the probate process governs how this happens. Wills and living trusts both play important parts in this process, though each has a specific purpose and impact.
Wills
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Wills are legal documents through which you can state how you want your property to pass after you die. Wills only take effect once you die, and as long as you remain competent you can change the terms of your will at any time and for any reason. In Texas, anyone who is of sound mind and who is lawfully married, or at least 18 years of age or a member of the armed forces or merchant marine can make a will.
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Living Trust
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All the property you own at the time of your death, collectively known as your estate, gets lumped together and distributed according to the terms of Texas probate law. However, a living trust allows you to transfer ownership before you die to avoid this probate process. A living trust is a separate legal entity you can create and use to transfer property so that the trust owns it and not you. A person can create a Texas living trust as long as he meets the requirements for making a will and retitles property over to the trust before he dies.
Living Wills
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A living will is neither a living trust nor a last will and testament. A living will is a very specific kind of document that applies only when you are alive and lets health care professionals and other people know what kind of medical care you want when you're unable to express your wishes. In Texas, living wills must be made by a competent adult and signed by two witnesses. The state allows a person to make an oral living will or medical directive but only if the two witnesses and the attending physician are present.
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