All About Wills And Trusts

Short answer: A will and a living trust are not interchangeable. A will only takes effect after a court validates it through probate. A funded revocable living trust lets your assets pass to your beneficiaries without probate. In California, probate is required once an estate’s probate assets exceed $208,850 (Probate Code § 13100), and on a $1,000,000 estate the statutory fees for the executor and the estate’s attorney add up to $46,000 combined. Most people benefit from having a will. Whether you also need a trust depends on what you own and how you own it.

What is the actual difference between a will and a living trust?

A will is an instruction letter to the probate court. It has no legal effect on its own. Someone has to file it, the court has to open a case, and only then does property move to your beneficiaries. A living trust, by contrast, holds title to your assets while you are alive. If you funded it correctly, meaning your house, accounts, and other property are actually retitled in the name of the trust, those assets pass to your beneficiaries by the trustee simply following the trust document. No court involvement is required.

A trust that was signed but never funded does not avoid probate for whatever was left out of it. This is the most common mistake people make. Signing the trust document is only step one. Retitling the assets is the step that actually keeps you out of court.

A trustee and a probate executor or administrator are both fiduciaries. Both owe legal duties to the people who benefit from the estate or trust, and both can be held accountable for mismanaging property that isn’t theirs.

What happens if I die with only a will, or with nothing at all?

A will does not avoid probate. If your estate is above the $208,850 threshold, having a will just means the court knows who you wanted to inherit and who you wanted to serve as executor. The estate still goes through the same court process, on the same timeline, at the same statutory cost.

If you die without a will, California’s intestate succession statutes decide who inherits, not your preferences (Probate Code § 6400). For community and quasi-community property, a surviving spouse takes all of it, their own half plus the decedent’s half (Probate Code § 6401(a)-(b)). For separate property, the surviving spouse’s share depends on who else survives: all of it if there are no surviving children, parents, or siblings; half if there is one child or no children but a surviving parent or sibling; one-third if there are two or more children (Probate Code § 6401(c)). Stepchildren who were never legally adopted and unmarried partners generally inherit nothing under intestate succession (Probate Code §§ 6401 through 6402). Dying without a will does not avoid probate either. An intestate estate above the small-estate threshold still goes through full, court-supervised probate under the same statutory fee schedule.

How much does probate actually cost?

California sets the executor’s fee and the estate attorney’s fee by statute: 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, 1 percent of the next $9,000,000, and 0.5 percent of the next $15,000,000 (Probate Code §§ 10800 and 10810). On a $1,000,000 estate, that schedule produces $23,000 for the executor and a separate $23,000 for the attorney, or $46,000 in ordinary fees before court costs or bond. The fee is calculated on the gross value of the estate “without reference to encumbrances,” so a mortgage does not reduce it (Probate Code § 10800(b)). Most California probate cases take twelve to eighteen months from the date the court appoints a personal representative.

A trustee, on the other hand, is paid whatever the trust document says (Probate Code § 15680). If the trust is silent, the trustee gets “reasonable compensation under the circumstances,” not a percentage off the statutory schedule (Probate Code § 15681). A complete trust-based estate plan, meaning a revocable living trust, pour-over will, and the deed moving your home into the trust, is generally a flat-fee engagement rather than a percentage of your estate.

Does a living trust reduce my taxes or protect my house from a nursing home?

No. A revocable living trust does not reduce income tax, property tax, or estate tax. California has no state estate tax and no state inheritance tax (Revenue and Taxation Code § 13301). Most families never face federal estate tax at all: the 2026 federal exemption is $15,000,000 per person, or $30,000,000 for a married couple.

A revocable trust also does not shield assets from Medi-Cal while you are alive. Because you can revoke the trust and reclaim the assets at any time, everything in it remains fully countable for Medi-Cal eligibility (42 U.S.C. § 1396p(d)(3)(A)). Where a trust does matter is after death: California limits Medi-Cal estate recovery to the deceased person’s probate estate, so assets that passed outside probate, including assets titled in a living trust, are generally not part of what the state can recover from (Welfare and Institutions Code § 14009.5; 42 U.S.C. § 1396p(b)(4)(A)).

Once assets are in a trust, who is actually running it?

The trustee must administer the trust according to its terms and the law. California sets no fixed statutory deadline for finishing administration, only a duty to act within a reasonable time (Probate Code § 16000). When a revocable trust becomes irrevocable, typically at the person’s death, the trustee must send formal notice to all beneficiaries and legal heirs within 60 days. That notice starts a 120-day window during which the trust can be contested (Probate Code § 16061.7). A typical uncontested trust administration runs about 6 to 18 months.

Figures verified July 2026.

What to do next

If you do not have a will at all, that is the first gap to close, regardless of whether you eventually add a trust. If you own a home or have an estate that would land your family in probate, talk to an estate planning attorney about whether a funded living trust makes sense for you, and make sure any trust you already have was actually funded.