Estate planning guide
Trust or Will in California
Both say who receives your property. Only one keeps your family out of probate court. How to tell which one fits.
Why it matters
Two documents, two different jobs
It is usually the first question people ask when they start an estate plan: do I need a trust, or is a will enough? Both documents say who receives your property. They work very differently, though, and the difference matters most when your family needs the plan to work.
Here is how each one works in California, what each does well, and how to tell which fits your situation.
What a will does
A will names the people who receive your property when you die. It names an executor to carry out your wishes, and if you have minor children, it is where you nominate a guardian for them.
A will has two important limits. First, it does nothing while you are alive. If you become unable to manage your own affairs, a will cannot help. Second, a will does not avoid probate. When you die, property in your name alone generally has to go through the probate court before it can pass to the people named in your will, unless the estate is small enough to qualify for a simpler procedure.
Probate in California is a court-supervised process. It is public, it often takes a year or more, and the attorney and executor fees are set by law based on the value of the estate. That value is measured before subtracting what you owe. A house with a large mortgage can produce the same probate fees as a house owned free and clear.
What a revocable living trust does
A revocable living trust is a document that holds your property during your life and directs where it goes afterward. You usually serve as your own trustee, so you keep full control. You can buy, sell, and borrow as before, and you can change or cancel the trust at any time.
The difference shows up later. When you die, the successor trustee you chose can distribute the property in the trust without opening a probate case. If you become unable to manage your affairs during your life, that same person can step in and manage the trust property without a court-appointed conservator. A trust administration is also generally private. There is no public court file listing what you owned and who received it.
Even with a trust, you still sign a will. It is called a pour-over will, and it acts as a safety net that directs anything left outside the trust into it.
Side by side
Probate. A will: property in your name alone usually goes through probate. A trust: property held in the trust does not.
Incapacity. A will: no help while you are alive. A trust: your successor trustee manages trust property if you cannot.
Privacy. A will: the probate file is public. A trust: the administration is generally private.
Timing after death. A will: probate often runs a year or more. A trust: administration can often be completed sooner.
Upfront work. A will: less to set up. A trust: more to set up, and your property has to be moved into it.
Children. Both can hold money for children until a set age. The will is where you nominate a guardian.
When a will may be enough
A will-based plan can make sense when you do not own real estate, your assets are modest, and most of what you own already passes by beneficiary designation. Retirement accounts, life insurance, and bank accounts with a payable-on-death beneficiary all pass outside of probate. If what remains in your name alone would fall within California’s small-estate procedures, a trust may add cost without much benefit.
This is often true for younger people who rent. It changes the day you buy a home, so revisit the question then.
When a trust usually makes sense
You own a home or other real estate in California. In many parts of the state, a home alone puts an estate well above the small-estate limits.
You have minor children, or beneficiaries who should not receive a large sum all at once.
You have a blended family and want to protect both your spouse and children from an earlier relationship.
You own property in more than one state.
You want a plan for incapacity that does not depend on a court.
You value privacy for your family.
If several of these describe you, a trust is usually the better fit. Our guide to blended family planning and our guide to naming a guardian cover two of these situations in more detail.
Common misunderstandings
“My will keeps my family out of probate.” It does not. A will tells the probate court what you want. It does not avoid the court.
“A trust means giving up control.” A revocable trust is yours. You manage it, and you can change it.
“Once the trust is signed, I am done.” A trust only controls property that is moved into it or that names it as beneficiary. See our trust funding checklist.
“Joint ownership takes care of everything.” Joint ownership can pass property to the surviving owner, but it usually only postpones probate until the second death, and it can carry tax and family drawbacks.
Talk with us
Montanez Yu prepares complete estate plans for individuals and families throughout California, including revocable living trusts, wills, powers of attorney, and advance health care directives. Estate planning consultations are free, and every plan is a flat fee, quoted in writing before we begin. Call (951) 444-7407 or request a free consultation.
This guide is general information about California law, not legal advice for your situation. Reading it does not create an attorney-client relationship.