Blog · Estate Planning

Trusts and Estate Planning in Texas: What Most People Get Wrong

By Dylan James, Texas attorney · June 2026

Most people know they should have a will. Far fewer actually have one. And of the ones who do, a surprising number have documents that either don't accomplish what the person intended, are missing key components, or — in the case of trusts — were created but never properly funded, making them nearly useless.

Estate planning is one of those things that feels like it can always wait until next year. Then next year becomes an emergency, and by then the options are limited and the costs are high. Here's a plain-language look at how trusts and estate planning actually work in Texas, and the mistakes I see most often.

Wills and trusts are not the same thing

A will is a document that says what happens to your assets after you die. A trust is a legal entity that holds assets during your lifetime and distributes them according to your instructions — either during your life, at your death, or both. The two tools serve overlapping but distinct purposes, and most solid estate plans use both.

For many Texas families, a well-drafted will combined with a Lady Bird deed for the home (see: deed transfers in Texas) accomplishes most of what they need at lower cost than a full trust. For others — especially those with significant assets, blended families, minor children who may need managed distributions, or concerns about incapacity — a revocable living trust is the right core document. There isn't a universal answer.

Probate in Texas: less scary than you've heard

Avoiding probate is often cited as the primary reason to set up a trust. Texas probate is worth understanding before you decide how much effort to put into avoiding it.

Texas has one of the more streamlined independent administration systems in the country. If the estate qualifies — and most do, unless there are significant disputes — a Texas independent administration can be handled without constant court supervision. It's not free or instant, but it's also not the years-long nightmare people imagine from stories about other states.

That said, there are real reasons to avoid probate even in Texas:

• Cost and time — even a straightforward Texas probate takes months and involves attorney fees, court costs, and executor time
• Privacy — probate records are public; a trust is not
• Out-of-state property — if you own real estate in another state, that state's probate laws apply, and you may need a separate ancillary probate proceeding there
• Incapacity planning — a trust can manage your assets if you're alive but unable to, which a will cannot do

The biggest mistakes I see

1. Having a will but nothing else

A will covers what happens after you die. It says nothing about what happens if you're in a car accident and are unconscious for six months. A complete estate plan includes a durable power of attorney (so someone can manage your finances if you're incapacitated) and a medical power of attorney and directive to physicians (so someone can make healthcare decisions for you). Without these, your family may need a guardianship proceeding — a court process that is expensive, slow, and very public — to make decisions on your behalf.

2. Creating a trust but not funding it

This is the single most common trust-related mistake. A revocable living trust is just a piece of paper until assets are transferred into it. Your home still needs a new deed — a deed to the trust. Your bank and investment accounts need to be retitled in the name of the trust, or the trust needs to be named as beneficiary. If you created a trust five years ago and never followed up on the funding, there's a real chance your family will still face probate for the assets you intended to protect. Call me, and we'll audit what you have.

3. Not updating documents after major life changes

A will written before a divorce, a remarriage, the birth of additional children, or a significant change in assets may not reflect your intentions — and in some cases it may actively harm the people you meant to protect. Texas law has some automatic provisions (for example, divorce revokes any bequest or power of attorney given to a former spouse), but don't rely on the law to fix a document that needs to be updated. Review your plan every three to five years, or immediately after any major life event.

4. Treating beneficiary designations as an afterthought

Life insurance, retirement accounts (401(k), IRA), and payable-on-death bank accounts all pass by beneficiary designation — meaning they go to whoever is named on the form, regardless of what your will says. If you named your ex-spouse on your IRA fifteen years ago and never updated it, your ex gets the IRA. Full stop. Your will cannot override a beneficiary designation. These need to be reviewed alongside your estate planning documents.

5. Waiting until it's urgent

Estate planning only works if it's done before you need it. A will signed in a hospital, a power of attorney executed under pressure, a trust drafted in a rush — all of these carry risk. Courts scrutinize documents signed close to death for capacity and undue influence. The most protective plan is one made calmly, deliberately, and well in advance.

What a complete Texas estate plan looks like

For most individuals and families, a complete plan includes:

• A will (or a revocable living trust, depending on your situation)
• A durable power of attorney for finances
• A medical power of attorney
• A directive to physicians (living will)
• Updated beneficiary designations on all accounts and policies
• A deed strategy for any real property (Lady Bird deed or deed to trust)
• If you have minor children: a guardian designation

That's the foundation. Your situation may call for more — special needs trusts, irrevocable trusts for Medicaid planning, business succession documents — but the above is the baseline every adult in Texas should have.

Related reading: Deed transfers in Texas: what they are and when you need one · What is General Counsel and do I need one?