Living Trust or Will in Texas: What Each One Does and What Makes a Will Valid

Quick answer: A will tells a Texas court who should receive your property after you die, and it does not prove title to anything until it is admitted to probate (Estates Code Sec. 256.001). A living trust holds property under written terms while you are alive, and the successor trustee you name carries on under those terms when you die or can no longer manage. A Texas will generally must be in writing, signed, and attested by two credible witnesses who are at least 14 (Sec. 251.051). For a Houston family, a common setup is both: the trust for the house and major accounts, the will for whatever never got moved into the trust.

What does a will do in Texas?

A will says who receives what you own when you die. It does nothing while you are alive. Texas law is blunt on this point: the probate of a will of a living person is void (Sec. 256.002). A will also gives no one authority to help you if an illness leaves you unable to manage your affairs.

After death there is another step. Under Sec. 256.001, a will “is not effective to prove title to, or the right to possession of, any property disposed of by the will until the will is admitted to probate.” In practice, your family goes to court before the will can be used to show who owns the house.

What makes a will valid in Texas?

First, the person making it. Sec. 251.001 says a person of sound mind can make a will if the person is 18 or older, is or has been married, or is a member of the armed forces, an auxiliary of the armed forces, or the United States Maritime Service.

Second, the document. Under Sec. 251.051, a will must be:

• In writing.
• Signed by you, or by another person on your behalf, in your presence and under your direction.
• Attested by two or more credible witnesses who are at least 14 and who sign in their own handwriting in your presence.

There is one well-known exception. A will written wholly in your own handwriting does not need witnesses (Sec. 251.052). It is allowed, but no lawyer and no witness was in the room to catch a vague phrase or a missing instruction.

Many wills also carry a self-proving affidavit, sworn to by the person making the will and the witnesses (Sec. 251.101). It is a small addition that can spare your family from tracking down witnesses years later.

What does a living trust do?

A living trust is a trust you create while you are alive. You are the settlor. You sign written terms, move property into the trust, and name who manages it and who benefits from it. For a trust holding real or personal property, the Trust Code generally requires written evidence of the terms bearing the signature of the settlor or the settlor’s authorized agent (Property Code Sec. 112.004).

Texas lets a settlor revoke a trust unless the document says it is irrevocable (Sec. 112.051), so you keep control. We cover that in can you change or cancel a living trust in Texas.

Many people serve as their own trustee for as long as they can. When they no longer can, or after death, the successor trustee steps in, with a duty to administer the trust in good faith according to its terms (Sec. 113.051).

The catch is funding. A trust controls only what you actually move into it. Bank accounts have to be retitled and a house needs a recorded deed, which raises its own question about your homestead exemption. A signed trust with nothing in it controls nothing.

How do a will and a living trust compare?

Question	Will	Living trust
When does it start working?	At death, and it must be admitted to probate to prove title	Once signed and funded
Formal requirements	Writing, signature, two credible witnesses at least 14; or wholly handwritten	Written terms bearing the settlor’s signature, with narrow exceptions
Who manages things?	The person the court appoints, usually the one you named	The successor trustee you named
If you lose capacity	Does nothing	Successor trustee can manage trust property
What it covers	What you own at death	Only what was moved into it
Can you change it?	Yes, while you have capacity	Yes, in writing, unless it is irrevocable

Do you need a living trust, a will, or both?

It depends on your family and your property. A few patterns come up often:

• A will alone can be a reasonable fit when your affairs are simple and you are comfortable with a court step later.
• A living trust makes more sense when you want someone to step in if you lose capacity, when you want to control how a child receives property over time, or when you own a home you want handled carefully.
• Both is the common answer. The trust does the heavy lifting and a short will catches what was left out.
• A deed instead. If the house is the only concern, compare a transfer on death deed first.

Neither a will nor a trust covers everything. Accounts outside the trust and medical decisions need powers of attorney.

What happens if you have neither?

When someone dies without a valid will, Texas intestacy laws generally determine who inherits the estate. The result may not match what the person wanted, particularly when there are children, blended families, unmarried partners or complicated assets. Estate planning is not only for people with substantial wealth. It is how you get to decide.

Why talk with Gordon Law & Associates in Houston

Attorney Pamela Y. Gordon’s practice focuses on real estate law, complex title issues, and estate planning with an emphasis on trusts. That combination matters here, because the most valuable thing going into many plans is a house, and the deed has to be right.

See our pages on living trusts and estate planning. Call (713) 837-7875 for a free consultation, in English or Spanish, or contact the firm.