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As a Houston estate planning attorney, I often get questions from clients as to whether they should have a Will or a revocable living trust as their primary estate planning tool. The answer will vary depending on the client’s specific circumstances and objectives, but there are definitely certain instances where a trust is a good choice.
One aspect of a revocable living trust that clients like is that it remains private after you die. A will, on the other hand, must be admitted to probate in order to be proven valid and to administer an estate. When a last will and testament is submitted for probate in a Texas court, it is filed in the public records, meaning anyone can view the will. Often, this is not a concern for clients because their wills do not list specific assets or the values of those assets. Other times, however, clients may have large specific gifts in their wills that they wish to keep private. This is one instance where a Texas revocable living trust can help accomplish the client’s goal of privacy.
In the past, when a will was filed for probate in a Texas court, a probate inventory had to be filed as part of the administration process. The probate inventory includes a list of all the probate assets of the decedent as well as the date of death values. The probate inventory becomes a public record when it is filed with the court. This is a concern for some clients, who do not want their assets listed for viewing by creditors or the general public. As a side note, assets that pass by beneficiary designation are not probate assets and are not listed on the inventory. These include assets such as life insurance, 401(k) plans, Individual Retirement Accounts (IRAs), and annuities. However, the law in Texas has changed so that a probate inventory no longer has to be filed with the court, provided that the will contains the proper language. If the will allows for it, an affidavit stating that the inventory has been prepared and delivered to the necessary parties will suffice in lieu of filing the inventory with the court.
While the change in Texas law concerning the probate inventory has alleviated many clients’ concerns over privacy, some clients still desire as much privacy as possible when dealing with their assets and estate. You should speak to your estate planning attorney in order to decide whether a revocable living trust is a good fit for your needs.
