Living Trust vs. Will in California: Which Do You Need?

General information, not legal advice. Attorney advertising. Reading this article does not create an attorney-client relationship. See the important information at the end of this article.

The quick comparison

What a will does — and doesn’t do

A will is a set of instructions to the probate court. It says who receives your property, who serves as executor, and whom you nominate as guardian for minor children. In California a typed will generally must be signed by you and two adult witnesses who understand it is your will (Probate Code § 6110). A handwritten (“holographic”) will can be valid if the signature and material provisions are in your handwriting (§ 6111).

The key misconception: a will does not avoid probate. If the assets that pass under your will — things titled in your name alone without a beneficiary designation — are worth more than California’s small-estate limit, your executor will usually need to open a probate case in the San Diego County Superior Court. That limit is set in Probate Code § 13100 and is adjusted for inflation every three years; for deaths on or after April 1, 2025 it is $208,850. A San Diego home almost always exceeds it on its own.

What a living trust does

A revocable living trust is an arrangement you create during life. You transfer (“fund”) your assets — your home, bank and brokerage accounts — into the trust, and you typically serve as your own trustee, so day-to-day nothing changes. You can buy, sell, amend or revoke while you have capacity.

When you die, the successor trustee you chose steps in and distributes the trust assets under its terms without a court case. The trustee must still follow California’s rules — including sending the notice required by Probate Code § 16061.7, after which beneficiaries and heirs generally have 120 days to contest the trust (§ 16061.8) — but the process is typically faster, cheaper and private.

Cost: paying now vs. paying later

A trust-based plan costs more to prepare than a simple will. But probate fees in California are set by statute as a percentage of the gross estate (Probate Code §§ 10800 and 10810), not the equity. On a $1,000,000 estate the statutory attorney fee is $23,000 and the executor is entitled to another $23,000 — $46,000 before court filing fees, appraisal and publication costs. (See How much does probate cost in California? for the full calculation.) For many homeowners, the cost of a trust-based plan is considerably less than that, although every situation is different.

Privacy

A will admitted to probate becomes part of the public court file, along with inventories of what you owned. A trust is generally not filed with any court, so the details of your estate and who receives what remain within the family.

Incapacity

A will does nothing while you are alive. If you have a stroke or develop dementia, a trust lets your successor trustee manage trust assets for your benefit. Combined with a durable power of attorney and an advance health care directive, it can help your family avoid a court conservatorship.

Children and guardians

Only a will can nominate a guardian for your minor children, which is why trust-based plans include a pour-over will. A trust adds something a simple will can’t easily do: hold your children’s inheritance until ages you choose (for example, one-third at 25, 30 and 35), managed by a trustee you trust. Without that, assets left to minors generally require a court-supervised guardianship of the estate, and children receive everything outright at 18.

When a will alone may be enough

• You rent rather than own real estate and your probate assets are below the small-estate limit.
• Most of your wealth passes by beneficiary designation (retirement accounts, life insurance, payable-on-death accounts) and those designations are up to date.
• You are young, without significant assets, and mainly need guardianship nominations, a power of attorney and a health care directive.

Even then, review your plan as your situation changes — buying a home in San Diego is often the moment a trust starts to make sense.

Questions to help you decide

• Do you own real estate in California or in another state? Real property in more than one state can mean more than one probate without a trust.
• Would your probate estate exceed the small-estate limit?
• Do you have minor children, a child with special needs, or a blended family?
• Is privacy important to you or your family?
• Who would manage your finances if you were incapacitated?
• Do you want children or grandchildren to receive their inheritance gradually rather than all at once?

If you answered “yes” to several of these, a trust-based plan is usually worth discussing.

Common mistakes

• Not funding the trust. A trust only avoids probate for assets titled in it. Forgetting to deed your home to the trust is the classic error.
• Relying on joint tenancy. Adding a child to title can expose the property to that child’s creditors and can have tax drawbacks.
• Outdated beneficiary designations that conflict with your plan.
• Never updating after marriage, divorce, births or deaths.