MARINE HOMEOWNERS

If you own a home in Marin County, a Living Trust may be one of the most important components of your estate plan—particularly if you want your home to pass to your chosen beneficiaries without formal probate.

Owning a house does not automatically mean that you are legally required to have a trust. But California Courts specifically identifies home ownership as a reason to consider a Living Trust, because a properly funded trust can allow the home to pass to beneficiaries without formal probate.

For Marin homeowners, this issue can be especially important because the value of the family home may represent a substantial portion of the estate.

Real estate is different from many other assets.

When a homeowner dies, someone must have a legal method of transferring ownership of the property to the next owner.

Exactly what happens depends on factors including:

• How title to the property is held
• Whether there are co-owners
• Whether the property is held in a Living Trust
• Whether another non-probate transfer method applies
• The value of the property
• The owner’s other assets
• Whether there is a surviving spouse or domestic partner
• The owner’s estate-planning documents

California Courts recommends examining the deed to determine how real estate is owned – for example, individually, in joint tenancy, as community property, through a transfer-on-death deed, or in the name of a trust.

The deed to your Marin home therefore matters almost as much as the estate-planning documents sitting in your file cabinet.

Generally, a home that has been properly transferred into a Living Trust can be administered and transferred to the trust beneficiaries without formal probate.

California Courts explains that when assets have actually been placed into a Living Trust, they should pass to the beneficiaries without having to go through probate court.

That is an important distinction.

Simply signing a Living Trust does not necessarily accomplish the objective.

The Home Must Be Properly Coordinated with the Trust

If your estate plan calls for your home to be owned by your trust, the title generally needs to reflect that planning.

For real estate, this ordinarily involves preparing and recording an appropriate deed.

This process is commonly called funding the trust.

A trust that was prepared years ago but never properly funded can create an unpleasant surprise for a family after the homeowner dies.

Because the way an asset transfers at death is often more important than simply having a will.

Imagine that you own a home solely in your name. Your will says: “I leave my home to my children.”

The will tells everyone who you want to receive the property. But the title to the home does not automatically change simply because the will says your children should inherit it.

Depending on the circumstances and available transfer procedures, administration may be required to legally transfer that property to the beneficiaries.

The will tells the estate where the property should go. It doesn’t necessarily provide the means to bypass probate to get it there.

A properly established and funded Living Trust works differently.

You create the Living Trust during your lifetime and transfer appropriate assets into it. You typically retain control over those assets while you’re living.

You also designate a successor trustee who can administer the trust according to its terms after your death.

If assets have been properly placed into the Living Trust, California Courts explains that they generally can pass to the trust beneficiaries without having to go through probate court.

That distinction is important:

A Will: Says who should receive your property. It does not, by itself, prevent probate.

A Living Trust: Can hold ownership of assets during your lifetime and provide for their administration after your death.

Assets properly held in the trust can generally pass outside formal probate.

Usually, that is the wrong way to look at it.

A comprehensive estate plan may contain both a Living Trust and a will, because the documents perform different functions.

A Living Trust can address ownership and administration of trust assets.

A will can address property that remains subject to the will and perform other estate-planning functions.

The goal isn’t to decide whether a will or trust is universally “better.”

The goal is to make sure all of your estate-planning documents and asset ownership work together.

A Living Trust Must Be Properly Funded

Simply signing a document titled “Living Trust” does not necessarily keep your property out of probate.

Assets intended to be governed by the trust generally must be properly transferred into or otherwise coordinated with the trust. This is called funding the trust.

For a home or other real property, this commonly involves preparing and recording an appropriate deed transferring the property to the trust.

California Courts specifically describes the probate-avoidance benefit in terms of assets that have actually been put into the Living Trust.

This is why estate planning should address not only the documents themselves, but also how your assets are titled.

Yes. A Living Trust isn’t the only way property can transfer outside formal probate.

Depending on the asset and circumstances, property may pass through mechanisms such as:

• Joint ownership with rights of survivorship
• Beneficiary designations
• Payable-on-death accounts
• Certain transfer-on-death arrangements
• Property held in a Living Trust
• Certain transfers to a surviving spouse or domestic partner
• California’s simplified procedures for qualifying estates or property

California Courts identify several categories of property that may transfer without formal probate, including assets with named beneficiaries, property held in a Living Trust, certain jointly owned property and qualifying small-estate transfers.

Not every estate requires formal probate. California provides simplified transfer procedures when particular statutory requirements are satisfied.

For deaths occurring on or after April 1, 2025, for example, the maximum value for certain personal-property procedures is $208,850. California also introduced a procedure potentially available for a decedent’s primary California residence valued up to $750,000, subject to specific statutory requirements.

These rules are more complicated than simply asking, “Is my estate worth less than $750,000?”

Different limits and exclusions apply to different procedures. For many Marin homeowners, the value of the home alone can make careful planning especially important.

Avoiding unnecessary probate can potentially save your family significant time, expense and administrative burden.

California formal probate can involve court filings, notices, publication, asset inventories and appraisals, creditor procedures and eventual distribution of the estate.

A Living Trust can also provide something a will alone generally does not provide in the same way: a mechanism for managing trust assets during your lifetime if you become unable to manage them yourself.

Estate planning therefore isn’t only about what happens after you die.

It’s also about deciding who can act for you while you’re alive if you cannot act for yourself.

It may be worth reviewing your estate plan if you:

• Own a home or other California real estate
• Have substantial financial or investment assets
• Want to reduce the likelihood that your family will need formal probate
• Want to plan for incapacity
• Have children or other beneficiaries you want to protect
• Want greater control over the administration of your assets
• Created your will many years ago
• Have experienced significant changes in your family or finances

For Marin County homeowners in particular, appreciating real estate values can mean that an estate plan created many years ago no longer reflects the value or complexity of the family’s assets.

A Will Is Important. But It Is Not a Probate-Avoidance Plan by Itself.

A will can be an essential part of an estate plan.

But if your objective is to keep appropriate assets out of formal probate, having a will alone may not accomplish that goal. The more useful questions are:

• What do I own?
• How is it titled?
• Who receives it when I die?
• Would that transfer require probate?
• And what happens if I become incapacitated before then?

A properly designed estate plan addresses those questions together.

A will alone does not necessarily keep your home out of probate.

A will can state who you want to inherit your property and nominate an executor to administer your estate.

But California Courts makes clear that an estate may still need probate even when the person had a will. For example, suppose your will says: “I leave my Marin home equally to my children.” That expresses your wishes.

But if the house remains titled solely in your individual name when you die and no applicable non-probate transfer mechanism exists, legal administration may still be necessary to transfer ownership.

A will tells others who you want to receive the property.

A properly funded Living Trust can provide a mechanism for transferring trust-owned property outside formal probate.

This deserves particular attention because California law changed in 2025.

For deaths on or after April 1, 2025, California created an alternative procedure that can apply to a decedent’s primary California residence valued at up to $750,000, provided the statutory requirements are satisfied. The change applies to the primary residence-not simply any California real estate.

That does not mean every California estate under $750,000 automatically avoids court proceedings, nor does it mean a homeowner below that amount has no reason to consider a trust.

It is a specific transfer procedure with legal requirements.

And if a Marin primary residence is worth more than $750,000, that particular procedure will not apply under the current limit.

For many Marin homeowners, that distinction is significant.

“I’m Not Wealthy. I Just Own a House in Marin.”

This is something worth thinking about differently.

Estate planning isn’t only for people who consider themselves wealthy.

A homeowner may have purchased a Marin property decades ago for a fraction of its current value. The family may live relatively modestly while nevertheless owning a highly valuable asset.

The estate planning question isn’t: “Do I feel wealthy?”

It is: “What do I own today, how is it titled, and what will happen to it when I die?”

Your current property value – not what you originally paid for the house – is relevant when considering your estate.

Having a mortgage doesn’t eliminate the need for estate planning.

California Courts instructs people evaluating an estate to identify both the property’s fair – market value and debts associated with it. For certain probate calculations and transfer procedures, debts and mortgages cannot simply be deducted from the property’s value when determining whether an estate qualifies under a statutory limit.

That can matter considerably in Marin.

A homeowner might have substantial mortgage debt and think: “My equity isn’t that high, so probate isn’t something I need to worry about.”

That conclusion may be incorrect.

The ownership, gross property value, debt, other assets and applicable transfer procedure all need to be considered.

A Living Trust Can Also Help If You Become Incapacitated

• Estate planning isn’t only about death.
• Suppose you are alive but become unable to manage your financial affairs.
• Who can deal with matters involving your home?
• Who can manage trust assets?
• Who pays the mortgage, property taxes and insurance?
• Who handles repairs or tenants if the property is rented?
• A properly structured estate plan can designate people to act when you cannot.

California Courts specifically recommends estate planning for lifetime incapacity and identifies both powers of attorney and advance healthcare directives as tools for preparing for situations in which you cannot manage your own financial or medical decisions.

That is why a Living Trust should usually be considered as part of a complete estate plan, rather than as an isolated document.

Yes.

A Living Trust is not the only possible method.

Depending on the circumstances, California real estate may transfer through mechanisms involving:

• Joint tenancy
• Certain community-property arrangements
• Transfer-on-death deeds
• Transfers involving a surviving spouse or domestic partner
• Living Trusts
• Simplified statutory procedures when their requirements are satisfied

California Courts specifically advises reviewing the deed because the form of ownership can determine what happens after an owner dies.

Each method has different consequences.

The fact that one technique avoids formal probate does not necessarily mean it provides all the other benefits of a comprehensive estate plan.

California permits a Transfer on Death (TOD) deed in appropriate circumstances.

California Courts notes that a TOD deed may be useful when someone’s primary significant asset
is a home and there are few or no other substantial assets requiring distribution.

But a TOD deed and a comprehensive Living Trust are not interchangeable.

A homeowner with substantial real estate, financial accounts, investments, multiple beneficiaries, incapacity-planning concerns or more complicated family circumstances may need a broader plan.

The right approach depends on the individual situation.

A comprehensive estate plan often involves several coordinated documents.

At Marne Law, our complete estate-planning package includes:

• Revocable Living Trust
• Will
• Power of Attorney(s)
• Healthcare Directive(s)
• Transfer Deed/Titles

The objective is to create documents that work together – and then make sure the appropriate assets are properly coordinated with the plan.

Complete Estate Plan – $3,500

A comprehensive estate plan often involves several coordinated documents.

At Marne Law, our complete estate-planning package includes:

• Revocable Living Trust
• Will
• Power of Attorney(s)
• Healthcare Directive(s)
• Transfer Deed/Titles

The objective is to create documents that work together – and then make sure the appropriate assets are properly coordinated with the plan.

Complete Estate Plan – $3,500

There is no rule saying every Marin homeowner must have a Living Trust.

But if you own valuable Marin real estate and want to control who receives it, reduce the possibility of formal probate, plan for incapacity and make administration easier for your family, a Living Trust is well worth considering.

The more important question isn’t simply whether you “need a trust.” It is:

What would happen to your Marin home if something happened to you today?

If you don’t know the answer, your estate plan deserves a review.