One of the most common questions Californians ask during estate planning is whether they need a will, a living trust, or both. The honest answer depends on the size of your estate and how much control you want over the process, but understanding the core differences makes the decision much easier.
The Core Difference: Probate
A will only takes effect through probate court. Even with a valid will, if your estate exceeds California’s small estate threshold, your family will still go through the full probate process described above, often taking 9 to 18 months and costing tens of thousands of dollars in statutory fees.
A revocable living trust, by contrast, avoids probate for any asset properly titled in the trust’s name. When you pass away, your named successor trustee distributes assets according to your instructions, without court involvement, and without the process becoming a matter of public record.
Side-by-Side Comparison
| Factor | Will | Living Trust |
|---|---|---|
| Avoids probate | No | Yes, for trust-titled assets |
| Becomes public record | Yes, during probate | No |
| Upfront cost | Lower | Higher |
| Ongoing maintenance | Minimal | Requires funding and upkeep |
| Manages incapacity | No | Yes, successor trustee steps in |
| Speed of distribution | Months to years | Often weeks after funding |
Why Many Families Choose Both
Estate planning attorneys frequently recommend a “pour-over will” alongside a living trust. The trust handles the bulk of your assets, while the pour-over will acts as a safety net, catching anything accidentally left out of the trust and directing it in, still subject to probate, but only for whatever wasn’t transferred.
What a Trust Doesn’t Do Automatically
A trust only protects assets that are actually retitled into it. Many families create a trust document but forget to transfer their home, bank accounts, or investment accounts into it, a mistake known as an “unfunded trust,” which defeats the entire purpose. Proper funding is just as important as the trust document itself.
If you’re unsure which structure fits your family’s assets and goals, Michael Kerr offers confidential consultations to walk through the trade-offs and build a plan tailored to you.
