San Marcos, TX asked in Estate Planning for Texas

Q: Does real estate owned by a testamentary trust fall under ‘community property’?

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4 Lawyer Answers
Terry Lynn Garrett
Terry Lynn Garrett
PREMIUM
Answered
  • Estate Planning Lawyer
  • Austin, TX
  • Licensed in Texas

A: A person can only transfer what they have. If someone had a 50% community property interest in real property, that is all the testamentary trust has. The surviving spouse retains the other 50%.

Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN

A: You have not provided enough information to answer that question, but most likely the answer is no, the property is the separate property of the beneficiary of the testamentary trust.

Tammy Lyn Wincott
Tammy Lyn Wincott
Answered
  • Estate Planning Lawyer
  • San Antonio, TX
  • Licensed in Texas

A: Depends on when the property was purchased, was it ever refinanced, did both people deed it over to the trust, etc.

Eric James Smith
Eric James Smith
Answered
  • Estate Planning Lawyer
  • Arlington, TX
  • Licensed in Texas

A: A property is not owned by a trust. A trust is an agreement, not a person or entity. Property is owned in trust, by the trustee(s) for the benefit of the beneficiaries. Testamentary trusts spring at the death of a testator and are defined in the testator's will. You have not said what role, if any, one of the spouses plays in this agreement. Is she a trustee, beneficiary or both. Or is this in the planning stage and spouses are talking about writing wills that place property in trust? Nina is right based on the assumptions she made. Terry is right making completely different assumptions.

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