Do I need a Trust in California or is a Will enough?
One of the most asked questions is whether someone needs a trust — or if they can get by with just a will. The answer is, of course, “it depends.”
People typically understand that a will is how you dispose of your assets when you die. It’s how you say that you want your kids to get the house, but you want to be sure that Aunt June gets the book collection from your great grandfather. But here are a couple issues with a will:
They go into effect only at the time someone dies. In other words, there’s no embedded planning for incapacity AND the gifts generally must occur at the time of death. It’s much more complicated to say “my kids get X at age 25.” (There is a thing called a testamentary trust that you can put into a will, but #2 is the reason why that’s not awesome.)
A will goes through probate court. Yes, you don’t avoid probate by having a will. (And to hit the parenthetical: if there’s a testamentary trust, then you’d need the court to establish it via the will through the court proceeding.) (NOTE: There is a financial limit that if your assets are under this limit, you can avoid probate court with a will — or even without a will. In 2026, this is $208,850.)
What’s the problem with probate court in California? TLDR: time, publicity, and cost.
First, probate generally takes 18-24 months before anyone gets anything. That’s not a hard and fast rule, but it’s generally accurate. Have we had probates that close before 18 months? Yes, but only barely. Have we had some that last more than 24 months? Absolutely. An 18 month probate is a really long time when a minor child is involved; it’s a really long time for anyone! A lot can happen in that time.
Second, probate court is public. That means your will is public. That means anyone can see your will, find out what assets you had, and learn more about your family.
Third, the cost of going through a probate is expensive. There’s a filing fee + publication cost to start the process (generally $750-1500); then there are filing costs along the way; and then there are the fees for the attorney and the executor which are set by the State of California — based on the GROSS assets of the estate (read: not the value of the house less the mortgage, just the value of the house):
4% of the first $100,000
3% of the second $100,000
2% of the next $800,000
1% of the next $9,000,000
This means that if you have $500,000 in gross assets, the fee for the executor is $13,000 AND for the attorney is $13,000 (for a total of $26,000!) not to mention the filing fees, etc., we noted above. This is a lot of money — and even though it is reimbursed by the estate, it’s money that is not going to heirs or beneficiaries.
Okay, so how can a trust help?
A trust is a private document. It’s not recorded or filed anywhere. It dictates what happens to your assets if you are ever incapacitated AND at the time you die. It also allows gifts to take place over time. (E.g. My kid gets 10% at age 18 and the rest at age 25.) It also does NOT go through probate court!
Our next blog post will go into more details about what a trust is why it’s important, but generally:
It allows for incapacity planning
It avoids probate court.
It allows for gifts over time.
Most people need a comprehensive estate plan that includes a living trust, a will, a financial power of attorney, and a healthcare power of attorney. If you’re interested in a comprehensive estate plan, please contact us for a complimentary consultation!