WILLS VS TRUSTS

No. Having a will does not, by itself, avoid probate in California.

This is one of the most common misunderstandings in estate planning.

A will is an important legal document that states how you want your property distributed after your death and can name the person you want to serve as executor. But if assets must be transferred through your estate, your executor may still need to open a probate proceeding—even when you have a valid will.

California Courts state directly that an estate may need to go through probate even if the person had a will.

A will allows you to put important instructions in writing.

Among other things, a California will can:

Identify the people or organizations you want to inherit your property
State how you want certain assets distributed
Name an executor to administer your estate
Address other important estate-planning decisions

An executor named in a will is not automatically given authority to administer a formal probate estate merely because the will names that person. When probate is required, the court appoints the personal representative who will administer the estate.

A will therefore provides instructions for your estate.

It is not, by itself, a mechanism for avoiding probate.

Probate is the legal process used to administer and transfer certain property after someone dies.
In a formal California probate, a personal representative may need to:

• Petition the court to open probate
• Give required notices
• Arrange for publication of notice
• Inventory estate assets
• Have certain assets appraised
• Notify creditors
• Pay valid debts and expenses
• Obtain court authority when required
• Ultimately distribute the remaining estate to the appropriate beneficiaries

California Courts describes probate as the court process for distributing a deceased person’s assets, paying debts and settling the person’s financial affairs.

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.