Do I Need a Revocable Living Trust in California If I Already Have a Will?

The short answer is yes. This is largely because a revocable living trust can be used to directly transfer assets to your beneficiaries. Meanwhile, a will must go through the probate court process. That process can take well over a year and cost tens of thousands of dollars. Additionally, the probate court’s proceedings are open to the public and can be challenged by anyone who believes they were omitted from the will.

Unfortunately, many Californians mistakenly believe that drafting a will is the end-all be-all of estate planning. In reality, creating a will usually means your beneficiaries will be stuck in seemingly endless court proceedings to receive what they are owed. A revocable living trust is one of the most effective ways to help ensure your loved ones save time and money while also avoiding unnecessary emotional stress.

What Is the Difference Between a Will and a Trust in California?

A will is a written document that expresses your final wishes, but it only takes effect after you pass away and must be validated by a probate judge. A revocable living trust is a legal entity you create during your lifetime that holds ownership of your assets and bypasses the court system entirely.

What makes revocable living trusts so efficient is that they take effect immediately upon signing and transferring your assets into them. Additionally, you still have full legal control and ownership of the assets during your lifetime. When it is time for the assets to be distributed to your beneficiaries, a trustee that you chose steps in and distributes the assets per your instructions. The trustee does not have to ask the court for permission or notify the public about the terms of the trust.

Does a Will Avoid Probate in California?

No. A will guarantees that your estate will go through probate if the total value of your assets exceeds the state’s small estate limits. A will simply tells the probate judge how you want your assets distributed, but it does not bypass the mandatory court process.

Probate is the legal process where a court validates your will, pays your final debts, and officially transfers your assets to your heirs. In California, this process typically takes between 12 and 18 months, during which your beneficiaries cannot easily access their inheritance. It also ties up real estate, meaning your family cannot quickly sell a home if they need funds to cover maintenance costs or property taxes.

Because California real estate values are so high, almost any homeowner with a will will force their beneficiaries to go through probate. A trust, on the other hand, allows your friends, family, and chosen family to completely avoid the delays and frustrations of the California court system.

Who Pays the Fees for Probate in California?

Probate fees are paid directly out of the estate’s assets before your beneficiaries receive anything. California law sets both the will’s executor and the probate attorney’s fees. These fees are calculated based on the gross value of the estate’s assets; debts and mortgages do not reduce the estate’s value. This means the probate fees can be shockingly expensive, even for relatively simple estates.

The fees are as follows:

1. 4% of the first $100,000
2. 3% of the next $100,000
3. 2% of the next $800,000
4. 1% of the next $9,000,000

Additionally, both the executor and the attorney are legally entitled to fees. So, the costs effectively double. For example, if you own a home with a gross value of $1,000,000, the statutory fees alone would total $46,000 ($23,000 for the attorney and $23,000 for the executor). But it doesn’t stop there. That $46,000 figure does not include court filing fees and mandatory appraisal costs. A revocable living trust avoids these statutory fees entirely, keeping that wealth in your family’s pockets.

Can a Living Trust Protect My Chosen Family?

Yes, absolutely. Trusts operate entirely outside of the probate system. This means they can be administered privately, making it exceedingly difficult for disgruntled relatives to challenge your final wishes. If you believe your biological relatives are likely to file a legal challenge, a carefully drafted will can contain “no-contest clauses” which penalize individuals who challenge the trust’s validity.

Living trusts avoid much of the baggage associated with wills because they operate as private contracts. You designate a successor to handle the distribution of assets privately, skipping the probate court process entirely. You control who receives notification of the trust’s existence.

FAQs about California Wills and Trusts

What happens if I die without a will or trust in California?

If you die without an estate plan, your assets are distributed per California’s one-size-fits-all intestate succession laws. These laws prioritize legally married spouses and biological/legally adopted relatives. Without a will or trust, your close friends, unmarried partners, chosen family, etc., are not legally entitled to anything.

How long does the California probate process take?

Due to backlogs in California’s probate courts, the probate process typically takes between 12 and 18 months for simple estates. However, if your legal heirs file legal challenges or your estate is highly valuable or complex, the process routinely takes multiple years. If you own a home or multiple properties in Los Angeles or Beverly Hills, your estate will most likely fall on the longer end of that spectrum. A West Hollywood and Beverly Hills revocable trust attorney can help you skip that process entirely.

Does a pour-over will avoid probate?

No. A pour-over will is a safety net designed to catch any assets you forgot to include in your trust and “pour” them into it after you die. However, if those leftover outside assets exceed the current $208,850 threshold, the pour-over will still go through probate court to legally authorize the transfer.

Kushner Legal Helps Californians Protect Their Loved Ones

At Kushner Legal, our Beverly Hills & West Hollywood revocable trust attorneys help people find peace of mind knowing their loved ones will be cared for. By creating a living trust, you help ensure that your beneficiaries get what they need when they need it most.

Contact our team today to schedule a confidential consultation so you can take care of the people you value most.