For a Trust to be valid in Texas, it must meet the following requirements:
1. The Settlor must have a present intent to create a trust.
2. The Settlor must have capacity to convey assets to the trust. The Settlor has capacity if:
3. The trust must comply with the statute of frauds.
The statute of frauds is a law that requires certain contracts to be in writing and signed by those who are bound by them. A Settlor can create a trust orally through a declaration of trust; however, if the trust will hold real property, it must be in writing.
4. The trust must have a legal purpose. In other words, the terms of a trust may not require the trustee to commit a criminal or tortious act or an act that is contrary to public policy.
5. The Settlor must identify the property covered by the trust and place it in the trust for the benefit of the beneficiary. The Texas statutes specify that a trust cannot be created unless trust property exists.
6. The trust must have a Trustee who holds legal title of property for the benefit of the trust’s Beneficiaries.
If the Settlor does not name a Trustee, or if the named Trustee does not want to serve or cannot serve for any reason, the court can appoint a Trustee for the trust.
7. The trust must have ascertainable Beneficiaries. If the Settlor does not name the Beneficiaries with sufficient certainty, the trust will fail.
8. The trust may not violate the Texas Rule Against Perpetuities.
To be valid in Texas, a typewritten Will requires the presence of witnesses. However, there is no similar requirement that a Settlor signs a Trust agreement in the presence of witnesses for it to be valid.
Additionally, Trust agreements typically include a notary block because most people think it makes it seem more official. However, there is also no technical requirement that a Settlor signs the trust in the presence of a notary. This is one reason why, during the early days of the pandemic, many people opted to create a Revocable Trust to accomplish their estate planning goals.
One of the benefits of a Trust is that it is private. There is no legal requirement to record a Trust in a public forum, such as a court or a state institution. This allows Settlors to manage their property discreetly, and eventually distribute their property as they choose to their beneficiaries.
This article was originally published on May 23, 2011 and updated on August 9, 2023.
Rania graduated magna cum laude from South Texas College of Law Houston and is the founder of Rania Combs Law, PLLC. She has been licensed to practice law since 1994 and enjoys helping clients in Texas and North Carolina create estate plans that give them peace of mind.
My 91 year old cousin (resident of Texas) made a will and a revocable living trust as the beneficiary (in the will) of all real and personal property. Is this considered a “Pour-Over Will?” The living trust was not fully funded. My question is can the assets now be transferred to the living trust by the successor trustee? I believe those assets must now go through probate. Only her annuities had a designated beneficiary and will pass outside the will/living trust. My cousin did her estate plan only 2 months before she passed away; I do not believe that she realized what a living trust really did
or appreciate the fact that in order to avoid probate, she would have needed to transfer the assets into the living trust.
Yes. A pourover will captures all assets outside of the trust and pours them into the trust after the death of the testator. Property not in the trust will have to go through a probate proceeding.
If I am looking to do a trust in Texas, do my trustees or successor trustees have to be residents of the state of Texas or can they be resident in other states? Is the same true of a will’s representative? Thanks
It is possible to appoint trustees who lives in a different state. Non-residents can serve as executors if they appoint a resident agent to accept service of process in all actions or proceedings with respect to the estate and they file that appointment with the Court.
Is there an avenue to end a Revocable Living Trust For Married Settlors after the death of the first Settlor. My wife died before me and now my stepdaughter claims half my home and I can’t sell
A revocable trust is by definition revocable. In the trusts I draft, each Settlor can amend, restate or revoke the trust as it relates to his or her separate property and share of community property. How the deceased spouse’s community property is distributed is dictated by the terms of the Trust agreement.
After creating the Trust document and getting it notarized, do I need to register that revocable living trust in court or county in Texas
Question: Does the signature of the person who creates the Revocable Trust need to be notarized or witnessed?
I’m a naturalized citizen and I have the official document and a passport. I don’t have my birth certificate from Spain and am having a difficult time acquiring it. Do I need this to make a will?
