This is Jaime V. Papa with JVP Law, PLLC, and I was born to be an attorney. I love this stuff!
There are more than 41 steps to structuring and executing a strong estate plan. One of those steps is determining if your plan will be better suited with a Living Trust or a Will. In order to make this decision, you need to know the difference between a Trust and a Will.
A trust comes from the property code allowing it to avoid probate court and a Will comes from the estate and probate could meaning it will go through the probate process.
A trust is a set of documents. Before you create a trust, you must name it and understand your legal roles. You can name a trust whatever you want. I recommend that you simply use your last name. For example, My name is Jaime Papa, so my Trust should be called the Papa Living Trust.
Regarding the legal roles, after you create and sign your trust, you will be the grantor, meaning you made the trust, the trustee meaning you are responsible for administration and distribution of the trust, and beneficiary, meaning everything in the trust is for you or you.
The trust will include a series of clauses used to assist with tax planning, special needs, planning, asset protection, distribution, etc… This is where a trust can get tricky. The language is incredibly important, because it is all that will matter when a trustee is incapacitated or dead.
A trust is great because it will work if you are incapacitated.
After you have signed your trust, you will need to fund the trust, especially if you do not have a pour over will. This means you will place your property into the trust.
A will, like a trust, is a document. Generally, a Will cannot avoid probate court unless the value of the assets are so low that it qualifies for an exemption. In Texas, two probates must occur. One upon the death of the husband, and another upon the death of the wife. This is how estate planning and probate attorneys generally make most of their money.
During the probate process an individual you selected in your will as executor will gain the power to administer and distribute your assets once the court grants this person that power. Currently, that can take up to 6 months or longer.
Once this person has power over the distribution of your assets, they will need to work with various organizations to distribute your assets. Generally, they will not have power of the distribution over life insurance or retirement accounts, because these assets avoid probate court and will have beneficiaries nominated.
The problem is that if you are selecting a beneficiary to receive your assets to distribute them in some manner you have discussed with them, they are under no obligation to follow your guidance upon your death.