Many people have accused me of not wanting to make money. The truth is I need to be more diligent about my billing and marketing and generally not procrastinating, but more on that in other posts. There is a positive side, however, especially for my clients. I was a computer programmer for 5 years prior to law school and a hobbyist and tinkerer for life. That instills in me a love of the most efficient and simplest solution. I believe in finding that for my clients (or even non clients if there is a solution so simple as to not need a lawyer). While people do not think of legislative codes as either efficient or simple, I am here to say the Texas Probate Code is (relative to other states and countries) both.
I have said before and will say again, Texas is a great place to live and a better place to die. The vast majority of Texas families and individuals are best served by a simple will to handle their financial affairs at their passing. No trusts. No family limited partnerships. No $5000 secret seminars with foolproof tax-free Nevada corporations. In fact, absolutely no planning is probably better than dropping a few thousand dollars on paranoia-fueled legal instruments that will do nothing at best and incur further expense and complication at worst.
Before my ethical (screw the other ones) but higher billing peers berate me (hypothetical right now as I think I have no readers), there are at least 3 broad reasons to consider a living trust or other more complex instrument (I’ll refer to this just as a trust from hereon out unless otherwise noted) in Texas:
The first is real property (meaning dirt) owned outside Texas. Texas Probate is wonderful, but Texas Probate Courts only have jurisdiction over the decedent’s personal property (wherever it may be) and real property in Texas. Real property placed in trust can avoid probate in another state.
The second is estate tax planning. The exact $ amount for worrying about this is a moving target right now, thanks to our wonderful Congress, but if the estate is less than $4 million dollars, there is no need to consider the estate tax in your planning.
The third (and I’m cheating and combining 2, really) is having enough to fight over and being near certain estranged family, creditors, or other parties are going to come in and fight for it, or being dead set on the contents of your estate not being public record. A properly drafted trust is much more difficult to contest by non-beneficiaries than a will. This is actually a good thing. The last properly executed will is the good one, assuming the decedent had testamentary capacity when he drafted it, and we want everyone to come out of the woodwork and find that last will. The fights can be no fun (though I like em), but they ensure that all interested parties are at the table and hopefully the decedent’s intent gets done. As part of that, a will must be filed publicly to be probated, so if you do not want the contents of that will out there when you die, consider a trust.
That’s it. People have come into my office dead set on a nice expensive trust and left with their needs better served by a simple will and a couple other documents (for planning in later life, not Probate), or sometimes nothing at all. And I make less money. Dammit.