People ask us this question constantly: Will or Trust? Do I need both? What's the difference? Can't I just write my wishes down somewhere and be done with it?
The honest answer is: it depends on what you own. But for most California homeowners, a living trust is not optional — it's essential. And a will alone won't get your family where you think it will.
Let's break this down clearly.
What Is a Will?
A Will - technically called a Last Will and Testament is a legal document that states who you want to receive your assets when you die and who you want to be in charge of distributing them (your executor). If you have minor children, your Will is also where you nominate a guardian for them.
A Will sounds like it covers everything. The problem is that a Will only takes effect after you die, and it doesn't avoid probate it actually triggers it.
What Is Probate, and Why Does It Matter?
Probate is the court-supervised process for distributing your estate after you die. Your Will goes to the probate court, the court appoints your executor, and under court supervision your assets are gathered, your debts are paid, and what's left is distributed to your beneficiaries.
In theory, that sounds orderly. In practice, California probate is slow, expensive, and very public.
Slow: A typical California probate takes 12 to 18 months. Complex estates can take years.
Expensive: California sets probate attorney and executor fees by statute — a percentage of the gross value of your estate. On a home worth $800,000, the combined statutory fees are approximately $38,000. And that's before court costs, appraisal fees, and any contested issues. These fees are calculated on the gross value, not the net. If your home is worth $900,000 with a $600,000 mortgage, the fees are still calculated on the full $900,000.
Public: Probate is a court proceeding. Your assets, your debts, and your family's business become part of the public record. Anyone can look them up.
A revocable living trust avoids all of this. Assets in a properly funded trust pass directly to your beneficiaries without any court involvement.
What Goes Through Probate in California?
In California, an asset goes through probate if it's titled in your individual name and has no beneficiary designation. The current thresholds are real property worth more than $69,625 and bank or investment accounts worth more than $208,850.
If you own a home anywhere in California - Folsom, El Dorado Hills, Roseville, Granite bay, San Luis Obispo, San Diego, anywhere, you almost certainly exceed those thresholds. The median home price in California is well over $700,000.
A Will does not keep those assets out of probate. Only a properly funded living trust does.
What Is a Living Trust?
A revocable living trust is a legal agreement where you transfer ownership of your assets to the trust while you're alive. You are still in full control. You're the trustee and beneficiary of your own trust during your lifetime. You can change the trust, add or remove assets, and revoke it entirely if you want.
When you die (or become incapacitated), your successor trustee, the person you've named to take over, steps in. They manage and distribute your assets according to the trust's instructions, without any court involvement.
No probate. No court. No waiting 18 months. No $38,000 in fees. Just a straightforward transfer to your family.
A Living Trust Also Protects You While You're Alive
This is something people often don't realize: a living trust isn't just about what happens when you die. It also protects you if you become incapacitated.
If you have a stroke, develop dementia, or are otherwise unable to manage your finances, your successor trustee can step in immediately and manage your assets for your benefit without a court-supervised conservatorship. A conservatorship is expensive, time-consuming, and public. A well-drafted living trust avoids it entirely.
So Who Actually Needs a Will?
Almost everyone should have a Will, even if they also have a living trust. Here's why:
First, a Will serves as a safety net. Even if you have a trust, you might have assets that never got transferred into it - a bank account you forgot about, a small inheritance, a personal injury settlement. A "pour-over Will" catches those stray assets and directs them into your trust at death.
Second, and critically, a Will is where you nominate a guardian for your minor children. That important decision doesn't go in the trust.
But if a Will is your only estate planning document, and you own real property or significant assets, your family is almost certainly heading for probate.
What About Joint Tenancy and Beneficiary Designations?
There are a few other ways to avoid probate on specific assets. Adding someone as joint tenant on a property allows it to transfer automatically to the surviving joint tenant. Adding a payable-on-death beneficiary to a bank account lets it transfer without probate.
These are legitimate tools, but they have significant limitations. Joint tenancy can trigger property tax reassessment issues under Proposition 19. It also exposes your asset to your joint tenant's creditors and debts. And these approaches only work asset by asset. They don't give you a coordinated plan for everything you own.
A living trust gives you one coordinated plan for all of your assets, with much more flexibility and control.
The LegalZoom Question
We get asked about DIY estate planning websites all the time. Legal Zoom, Nolo, Trust & Will. They're cheap and convenient. So why not just use them?
The problem isn't whether the documents look right. It's whether they'll actually work. Estate planning documents have technical requirements: proper execution, correct language, specific California provisions. A document that looks complete may have subtle errors that only come to light when it's too late to fix them.
More importantly, DIY tools can't give you advice. They present checkboxes and options, and you're on your own to figure out which ones apply to your situation. Community property issues, Proposition 19 implications, blended family concerns, special needs beneficiaries, large IRAs: these require professional judgment, not a web form.
The Short Answer
Here's the simple version:
If you rent, have modest assets, and no minor children, a Will might be sufficient.
If you own a home and want to protect your family from probate, or a messy inheritance process, you need a revocable living trust, along with a Will and the other documents in a complete California estate plan.
Most California families need a living trust. If you're not sure which category you fall into, it's a short conversation with one of our attorneys. We'll tell you exactly what you need and what it will cost — no pressure, no obligation.
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Virtual Estate Planning
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