Understanding Wills and Trusts: A Comprehensive Overview by a California Lawyer

Short answer: A will and a living trust both let you say who gets your property, but they get there differently. A will only takes effect after a court validates it through probate. A properly funded revocable living trust passes assets to your beneficiaries without probate at all. California requires formal probate for any estate with more than $208,850 in probate assets, gross value before debts, for deaths on or after April 1, 2025 (Probate Code § 13100), and that process typically runs twelve to eighteen months. Most California homeowners are better served by a funded living trust, but a will still does work a trust cannot, including naming a guardian for minor children.

What’s the real difference between a will and a trust?

A will is an instruction letter to the probate court. It names your executor, names guardians for minor children, and says who gets what, but none of that happens automatically. The court has to open a probate case, confirm the will is valid, and supervise the distribution before anyone receives anything. A living trust works differently: you transfer ownership of your assets into the trust while you’re alive, you (or you and your spouse) act as trustee and keep full control, and when you die the successor trustee you named simply distributes the trust assets according to its terms. No court filing is required for the trust assets themselves.

That difference only matters, though, if the trust is actually funded. A trust that exists on paper but was never used to retitle your house, bank accounts, and other assets does not avoid probate for those un-retitled assets. This is the single most common estate planning mistake: people sign a trust and stop there.

Does a will avoid probate in California?

No. A will guarantees probate, it does not prevent it. Probate is a public, court-supervised process. Anyone can look up the filing, including your executor’s inventory of what you owned. A funded revocable living trust is private and generally keeps that information out of the public record. If your estate’s probate assets, meaning assets that are not already in a trust and do not pass by beneficiary designation or joint tenancy, exceed $208,850 in gross value, your estate needs a full, court-supervised probate under Probate Code § 13100. Assets that generally pass outside probate regardless of whether you have a trust include joint tenancy property, payable-on-death and transfer-on-death accounts, and life insurance or retirement accounts with a named beneficiary.

How much does probate actually cost?

California sets probate compensation by statute, and it is not cheap. The executor is entitled to a fee calculated as 4 percent of the first $100,000 of the estate, 3 percent of the next $100,000, 2 percent of the next $800,000, and smaller percentages above that, under Probate Code § 10800. The estate’s attorney is entitled to an identical fee calculated the same way, under Probate Code § 10810. On a $1,000,000 gross estate, that schedule produces $23,000 for the executor and a separate $23,000 for the attorney, or $46,000 in ordinary statutory fees before court costs, bond premiums, or any extra compensation for unusual work. That fee is based on the gross value of the estate, so a mortgage on the house does not reduce it.

A funded living trust does not run through this fee schedule at all, because there is no probate case to administer.

Does a trustee get paid the same way as an executor?

No, and this trips people up. A probate executor is paid on the fixed statutory percentage schedule described above. A trustee is paid whatever the trust document says, under Probate Code § 15680. If the trust is silent on the subject, the trustee is entitled to “reasonable compensation under the circumstances” instead, under Probate Code § 15681. There is no percentage schedule for trust administration the way there is for probate. Either way, a trustee and a probate executor are both fiduciaries who owe legal duties to the beneficiaries, and a trustee may not use trust property for personal benefit.

Will a trust save on taxes or protect the house from nursing home costs?

A revocable living trust does not, by itself, reduce income tax, property tax, or estate tax. California has no state estate tax and no state inheritance tax, under Revenue and Taxation Code § 13301, but that is true whether or not you have a trust. It is also worth knowing that assets held in a revocable living trust remain fully countable toward Medi-Cal eligibility for long-term care, because you as grantor can revoke the trust and take the assets back at any time, under 42 U.S.C. § 1396p(d)(3)(A). A revocable trust is an excellent tool for avoiding probate and keeping your affairs private. It is not, on its own, a tax shelter or a nursing home asset shield.

What happens if I die without either one?

If you die without a will in California, the intestate succession statutes decide who inherits, not your wishes. For community property, the surviving spouse takes all of it. For separate property, the surviving spouse’s share depends on who else survives, under Probate Code § 6401. If there is no surviving spouse, the estate passes first to children, then to more distant relatives in an order set by Probate Code § 6402. Stepchildren who were never legally adopted and unmarried partners generally inherit nothing under this scheme. Dying without a will does not avoid probate either. An intestate estate above the $208,850 threshold still goes through the same court-supervised process, under the same statutory fee schedule described above.

Figures verified July 2026.

What to do next

If you own a California home or your estate is anywhere near six figures, a conversation about a funded revocable living trust is worth having before probate becomes the default outcome. If you already have a trust, confirm your house, accounts, and other major assets are actually titled in its name, since an unfunded trust protects nothing. Either way, talk with an estate planning attorney about which combination of documents fits your family and your assets.