There is much debate among Texas attorneys as to whether it is better to have a Last Will and Testament or a Revocable Living Trust in estate planning. The simple answer is that it depends on the facts, your goals, the type of assets, cost concerns, potential disability issues (of both you and your beneficiaries), if real estate is owned in another state, etc. In fact, sometimes, it is best to have neither! There are numerous types of trusts created for a multitude of reasons that are beyond the scope of this article.

Although most realize you should know what you are doing for it to be valid under law, many are unaware that capacity needed for making a gift, signing a contract and signing a will are different.

Guardianship is often needed for an incapacitated person, but it is an expensive legal process which should be avoided if possible. Thus, planning should be considered as an alternative to guardianship. Texas law defines an “incapacitated person” as: 1) a minor; 2) an adult, who because of a physical or mental condition, is substantially unable to (a) provide food, clothing or shelter for himself or herself; (b) care for the person’s own physical health; or (c) manage the person’s own financial affairs. Also, a guardian may need to be appointed for a person to receive funds due to that person from a governmental source.