What are the Requirements of a Valid Trust in Texas?
Creating a valid trust in Texas requires meeting specific statutory requirements. These requirements, outlined in Texas Property Code, Title 9, Subtitle B, Chapter 112, ensure the trust is legally enforceable and fulfills its intended purpose. Below is an outline of the essential elements for establishing a valid trust.
Statutory Requirements for a Valid Trust
For a Trust to be valid in Texas, it must meet the following requirements:
- Intent to create a trust: The Settlor (the person creating the trust) must clearly express an intention to create a trust.
- Legal capacity to create a Trust: The Settlor must have the legal capacity to transfer property to the trust. In Texas, this means the Settlor must:
- Be at least 18 years old, legally married, or a member of the armed forces, and
- Be of sound mind at the time the trust is created.
- Compliance 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.
- Legal purpose: A trust must serve 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.
- The Trust Must Identify Trust Property: 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.
- Trustee: 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.
- Ascertainable Beneficiaries: The trust must have ascertainable Beneficiaries. If the Settlor does not name the Beneficiaries with sufficient certainty, the trust will fail.
- The trust may not violate the Texas Rule Against Perpetuities.
Does a Trust Have to be Witnessed and Notarized?
To be valid in Texas, a typewritten Will requires the presence of witnesses. However, a trust does not require witnesses to be legally binding. Similarly, while many trust agreements generally include a notary block for added formality, there is also no legal requirement that a Settlor signs the trust in the presence of a notary.
This flexibility was particularly advantageous during the early days of the pandemic, as many people opted to create a Revocable Trust to accomplish their estate planning goals without needing witnesses or notaries.
Do I need to Record a Trust Somewhere?
One of the key benefits of a Trust is privacy. Unlike a Will, which becomes a public record when filed with the probate court, there is no requirement to record a trust in Texas. This allows Settlors to manage their property discreetly, and eventually distribute their property to their beneficiaries according to their wishes without public disclosure.
Conclusion
Creating a valid trust in Texas involves meeting several statutory requirements to ensure its enforceability. If you are considering creating a trust as part of your estate plan, consulting with an experienced estate planning attorney can help you navigate these requirements and tailor the trust to meet your specific goals.
If you have questions about establishing a trust or other aspects of estate planning, feel free to reach out for professional guidance.
This article was originally published on May 23, 2011, and updated on January 8, 2025.
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Comments
Do I Need I New Will When I Move – Texas Wills and Trusts Online
February 27, 2012 at 12:56pm
[…] What are the Requirements of a Valid Trust in Texas? […]
GM
October 24, 2016 at 2:52pm
If a sibling is a trust beneficiary and he dies, who will get his share of the trust assets?
Rania Combs
November 30, 2016 at 4:22pm
The language of the trust should specify how assets will be distributed when a beneficiary dies.
Cathy
October 17, 2017 at 12:10am
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.
Rania Combs
October 17, 2017 at 11:00am
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.
Nathan
December 15, 2017 at 2:32pm
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
Rania Combs
December 19, 2017 at 10:26pm
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.
William E Readman
November 28, 2018 at 12:51am
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
Rania Combs
November 28, 2018 at 6:59pm
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.
Nataraj K
January 14, 2020 at 8:37pm
After creating the Trust document and getting it notarized, do I need to register that revocable living trust in court or county in Texas
Rania Combs
February 1, 2020 at 8:45pm
It is not necessary to register a living trust in any court or county in Texas.
Lee Sites
February 19, 2020 at 11:30am
Question: Does the signature of the person who creates the Revocable Trust need to be notarized or witnessed?
Rania Combs
February 20, 2020 at 5:01pm
Revocable trusts are signed by the Grantors and Trustees in the presence of a notary.
john sutton
June 19, 2020 at 6:04pm
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?
Rania Combs
June 22, 2020 at 5:00pm
You do not need a passport or birth certificate to make a Will.