# Inter Vivos Trust in California: Meaning, Types and Limits

> An inter vivos trust is a trust created during the maker's life. See how it differs from a testamentary trust, when it is irrevocable, and the California rules.

Source: https://ridleylawoffices.com/inter-vivos-trust-california/

**Short answer –**An inter vivos trust is a trust created while its maker is alive. The Latin means “among the living.” Its opposite is a testamentary trust, which a will creates at death. An inter vivos trust is often a revocable living trust, but the phrase also covers irrevocable trusts the maker can’t undo. So it tells you when a trust started and nothing about who controls it.

By Eric Ridley, attorney, Ridley Law. Updated October 2026.

## Where the phrase turns up, and what rides on it

Most people meet “inter vivos trust” in fine print: on a lender’s letter, in a bank’s form, in a statute a trustee is told to follow. For a homeowner, the lender’s version is the one that matters first. Federal law says that, on a loan secured by residential property with fewer than five dwelling units, a lender may not call the loan on a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which doesn’t transfer rights of occupancy ([12 U.S.C. § 1701j-3(d)(8)](https://www.law.cornell.edu/uscode/text/12/1701j-3)), so moving a home into a trust you benefit from doesn’t hand that lender a right to demand payoff. California’s notice statute uses the same words for a different job. It requires a trustee’s notification when a power of appointment retained by the settlor takes effect or lapses at death “with respect to an inter vivos trust which was, or was purported to be, irrevocable upon its creation” ([Prob. Code § 16061.7](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=16061.7)). So the Probate Code treats “inter vivos” and “irrevocable” as separate facts that can sit together. If a document you’ve been handed says inter vivos, don’t assume it can be revoked. A [living trust](https://ridleylawoffices.com/estate-planning-glossary-california/living-trust/) is the common case, and it isn’t the whole category.

The statutes behind the term are mapped in [California living trust laws](https://ridleylawoffices.com/california-living-trust-laws/).

## How an inter vivos trust is created

California lets an owner create a trust two ways while alive: by declaring that the owner holds the property as trustee, or by transferring the property to another person as trustee ([Prob. Code § 15200](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15200)). The first is how most people end up as trustee of their own trust. The second is how a parent funds a trust that a child or a bank runs.

Whether a trust exists at all comes down to a short list. The settlor has to manifest an intention to create a trust ([Prob. Code § 15201](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15201)), there has to be a beneficiary ([Prob. Code § 15205](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15205)), and a trust is created only if there is trust property ([Prob. Code § 15202](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15202)). A trust in relation to real property isn’t valid unless it’s evidenced by a signed writing, which can be an instrument signed by the trustee or one conveying the property signed by the settlor, or the trust arises by operation of law ([Prob. Code § 15206](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15206)). A signed trust with nothing assigned to it hasn’t given the statute anything to attach to. That’s why the deed and the account retitling are part of creating the trust, not paperwork afterward. The sequence is in [how to set up a living trust in California](https://ridleylawoffices.com/how-to-set-up-a-living-trust-california/), and the asset-by-asset work is [trust funding](https://ridleylawoffices.com/trust-funding/).

## Why make a trust during life at all

A will does nothing until death, so it can’t help on the day the maker loses capacity. A trust that exists during life can, because a trustee is already in place, and the statute spells out what that trustee owes beneficiaries at that point ([Prob. Code, § 15800(b)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15800)). See [trust or will](https://ridleylawoffices.com/trust-or-will/).

## The two questions that sort every trust

“Inter vivos” answers when a trust starts and says nothing about whether its maker can change it. Put the two questions together and every trust lands in one of four boxes.

| | Maker can revoke it | Maker can't revoke it |
| --- | --- | --- |
| Starts during the maker's life (inter vivos) | Revocable living trust. This is what California assumes when the instrument is silent. | Irrevocable life insurance trust, spousal lifetime access trust, charitable remainder trust. The instrument has to say it is irrevocable. |
| Starts at the maker's death (testamentary) | Empty. The person who could revoke is gone before the trust exists. | Trust created by a will or another instrument that takes effect at death. |

A trust that begins at death can’t be revoked by the person who made it, because the maker is gone before it exists. The will that creates it can be changed until death, but the trust isn’t there to change. A testamentary trust is created by a transfer “by will or by other instrument taking effect upon the death of the owner” ([Prob. Code, § 15200(c)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15200)). For how it compares with a living trust, see [testamentary trusts versus living trusts](https://ridleylawoffices.com/what-is-the-difference-between-a-testamentary-trust-and-a-living-trust-in-california/).

If you’re holding a family’s ordinary living trust, you’re in the top-left box, and the maker can still change it. Unless the instrument expressly makes it irrevocable, a trust is revocable by the settlor when the settlor lived in California when it was created, signed it here, or chose California law for it ([Prob. Code § 15400](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15400)), and the settlor can revoke it by the method in the trust or by a signed writing delivered to the trustee ([Prob. Code § 15401](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15401)).

If your document is in the top-right box, assume the maker gave up the power to take the property back, which is the point. An [irrevocable life insurance trust](https://ridleylawoffices.com/estate-planning-glossary-california/irrevocable-life-insurance-trust/) owns a policy so the proceeds can stay out of the maker’s estate as long as the maker holds no incidents of ownership, because insurance counts in the estate when the insured held “incidents of ownership” ([26 U.S.C. § 2042](https://www.law.cornell.edu/uscode/text/26/2042)). A spousal lifetime access trust is a gift in trust for a spouse, covered in [SLATs after the 2026 tax law](https://ridleylawoffices.com/slat-trust-2026-california/). A charitable remainder trust pays income for a period and then goes to charity. These trusts are lifetime trusts, they’re irrevocable, and none of them is a substitute for a revocable living trust.

## Reading the document you’ve been handed

The title on the cover tells you almost nothing. A document called “The Rivera Family Trust” (a hypothetical) could be a revocable living trust, an irrevocable trust for the children, or a will-based trust. Titles come from habit and from whoever drafted the form. You can classify a trust from two clauses. The first is the one that says when the trust takes effect. The second is the revocation clause. If the document is silent about irrevocability, California treats it as revocable (Prob. Code, § 15400). If the trust sets its own method of revocation, follow it, and if it makes that method the exclusive one, a signed letter to the trustee won’t work ([Prob. Code, § 15401(a)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15401)).

A revocable trust can be modified by the procedure for revoking it, unless the instrument says otherwise ([Prob. Code § 15402](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15402)). An irrevocable trust can be modified or terminated if all beneficiaries consent and petition the court, though the court can refuse where a material purpose of the trust still needs the trust to continue ([Prob. Code § 15403](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15403)), or by the written consent of the settlor and all beneficiaries ([Prob. Code § 15404](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15404)). Those routes are narrow, so decide whether you need irrevocability before you sign. See [changing an irrevocable trust in California](https://ridleylawoffices.com/changing-an-irrevocable-trust-california/).

## What changes when the maker dies

A revocable inter vivos trust changes status at the maker’s death. When a settlor dies, the trust or the settlor’s portion of it becomes irrevocable, and the trustee has 60 days to serve a written notification on each beneficiary and each heir ([Prob. Code § 16061.7](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=16061.7)). A person served can’t bring an action to contest the trust more than 120 days after service, or 60 days after a copy of the trust terms is delivered during that period, whichever is later ([Prob. Code § 16061.8](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=16061.8)). A trust two spouses create splits the same way. The notification is required when a revocable trust “or any portion thereof” becomes irrevocable because of a settlor’s death, so the deceased spouse’s portion can turn irrevocable while the survivor’s stays revocable. Unless the instrument says otherwise, each settlor can revoke as to the portion that settlor contributed ([Prob. Code, § 15401(b)(1)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15401)). See [family trust versus living trust](https://ridleylawoffices.com/family-trust-vs-living-trust/). The document that gave the maker full control for decades now has fixed terms and a running clock. The stage-by-stage view is in [living trust versus revocable trust](https://ridleylawoffices.com/living-trust-vs-revocable-trust/), and the trustee’s work after death is in [trust administration](https://ridleylawoffices.com/trust-administration/).

## Where lifetime trusts disappoint

Creditor protection is the first place a lifetime trust disappoints, because a trust you can revoke doesn’t shield what you could take back. If the settlor keeps the power to revoke, the trust property is subject to the settlor’s creditors to the extent of that power during the settlor’s lifetime ([Prob. Code § 18200](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=18200)). After the settlor’s death, that property is still reachable by the creditors of the probate estate to the extent the probate estate can’t cover its claims and expenses ([Prob. Code § 19001(a)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=19001)). Making the trust irrevocable doesn’t fix it when the settlor is also the beneficiary. A restraint on transfer in a trust the settlor created for the settlor’s own benefit is invalid against the settlor’s creditors ([Prob. Code, § 15304(a)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15304)). See [asset protection in California](https://ridleylawoffices.com/asset-protection-california/) and [self-settled trusts](https://ridleylawoffices.com/self-settled-trust-california/).

On estate tax, a revocable trust saves nothing, because property the maker can revoke is included in the gross estate ([26 U.S.C. § 2038](https://www.law.cornell.edu/uscode/text/26/2038)). The same inclusion has a benefit: property required to be included in the gross estate generally takes a basis equal to its date-of-death value, which can be higher or lower than the old basis ([26 U.S.C. § 1014(b)(9)](https://www.law.cornell.edu/uscode/text/26/1014)), which is why a revocable trust doesn’t cost a family the basis adjustment at death.

On property tax, putting a home into a revocable trust doesn’t start a reassessment, because a transfer into a trust is excluded from change in ownership while the trust is revocable or the transferor is its present beneficiary ([R&TC § 62(d)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=RTC&sectionNum=62)). That covers a revocable living trust and some irrevocable trusts for the maker’s own benefit. It doesn’t speak to an irrevocable trust for someone else. When the maker dies and the property passes to the beneficiaries, whether it’s reassessed depends on whether an exclusion applies, such as the parent-child exclusion in [Rev. & Tax. Code, § 63.2](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=RTC&sectionNum=63.2). It applies only to a home that was the parent’s principal residence and becomes the child’s within one year, it has to be claimed with the assessor, and value above the parent’s taxable value plus a set dollar amount is reassessed.

## Frequently asked questions

### What does inter vivos mean in a trust?

Latin for “among the living.” A trust is inter vivos when it’s created during the owner’s lifetime, either by the owner declaring that the owner holds property as trustee or by transferring property to another person as trustee (Prob. Code, § 15200(a) and (b)). A testamentary trust, created at death, is the other kind.

### Does the California Probate Code use the term inter vivos trust?

Yes, in the trustee notification statute. It requires a notification when a power of appointment retained by the settlor takes effect or lapses at death with respect to an inter vivos trust that was, or was purported to be, irrevocable upon its creation (Prob. Code, § 16061.7(a)(3)). The code treats “inter vivos” and “irrevocable” as separate facts.

### What is the opposite of an inter vivos trust?

A testamentary trust. It’s created by a transfer by will or by another instrument that takes effect at the owner’s death (Prob. Code, § 15200(c)). Because it doesn’t exist until then, there is nothing for the owner to revoke or fund during life, and the owner’s only lifetime decision is what the will or instrument says.

### Does an inter vivos trust avoid probate?

It avoids probate for what it holds. A trust is created only if there is trust property (Prob. Code, § 15202), and an asset still titled in your own name isn’t trust property. In the administrations I handle, probate runs twelve to eighteen months and trust administration six to nine when uncontested.

### Can a mortgage lender call my loan if I move my house into an inter vivos trust?

Not under federal law on a loan secured by residential property with fewer than five dwelling units, when the borrower is and remains a beneficiary of the trust (12 U.S.C. § 1701j-3(d)(8)). For a home the borrower occupies or will occupy, the regulation adds that the borrower must remain the occupant and that the lender can require reasonable means of timely notice of a later transfer (12 C.F.R. § 191.5(b)(1)(vi)).

### Can an inter vivos trust be changed after its maker dies?

Only in narrow ways. A revocable trust becomes irrevocable at the settlor’s death, and the trustee serves a notification within 60 days (Prob. Code, § 16061.7). After that, the usual routes are the consent of all beneficiaries with a court petition (Prob. Code, § 15403), or a court petition by a trustee or beneficiary when circumstances the settlor didn’t anticipate would defeat the trust’s purposes (Prob. Code, § 15409). The route that skips the court needs the settlor to consent too (Prob. Code, § 15404), so it isn’t available once the settlor has died.

This page is general information about California law as of its update date. It isn’t legal, tax, or investment advice for your situation, and reading it doesn’t create an attorney-client relationship.

**Related reading:** [revocable versus irrevocable trusts](https://ridleylawoffices.com/revocable-vs-irrevocable-trust-california/).

Sources

- California Legislature, [Prob. Code § 15200](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15200); [Prob. Code § 15201](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15201); [Prob. Code § 15202](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15202); [Prob. Code § 15205](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15205); [Prob. Code § 15206](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15206); [Prob. Code § 15304](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15304); [Prob. Code § 15400](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15400); [Prob. Code § 15401](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15401); [Prob. Code § 15402](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15402); [Prob. Code § 15403](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15403); [Prob. Code § 15404](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15404); [Prob. Code § 16061.7](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=16061.7); [Prob. Code § 16061.8](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=16061.8); [Prob. Code § 18200](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=18200); [R&TC § 62](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=RTC&sectionNum=62) (current, accessed October 2026)
- [12 U.S.C. § 1701j-3](https://www.law.cornell.edu/uscode/text/12/1701j-3); [12 C.F.R. § 191.5](https://www.law.cornell.edu/cfr/text/12/191.5); [26 U.S.C. § 1014](https://www.law.cornell.edu/uscode/text/26/1014); [§ 2038](https://www.law.cornell.edu/uscode/text/26/2038); [§ 2042](https://www.law.cornell.edu/uscode/text/26/2042) (current, accessed October 2026)