The Impact of Passing Away Without a Trust

Short answer: If you die without a funded revocable living trust, any assets that don’t already pass outside probate still go through California’s court-supervised probate process, even if you have a will. If you also have no will, state intestate succession law, not your personal wishes, decides who inherits, and a surviving spouse takes all community property while separate property gets split among relatives under a fixed statutory formula.

Does dying without a trust mean the same thing as dying without a will?

No. A will and a living trust solve different problems. A will only takes effect once a court validates it through probate, it does not avoid probate on its own. A living trust avoids probate, but only for assets that were actually retitled into it during your lifetime. If you have a will but never created or funded a trust, your named executor still has to open a probate case for anything the will controls. If you have neither a will nor a trust, the court appoints an administrator instead of an executor, and intestate succession law fills in for your wishes.

What happens to property that was never put in a trust?

Any asset still titled in your individual name at death, not held in joint tenancy, not payable-on-death or transfer-on-death, and not carrying a named beneficiary, becomes part of your probate estate. That includes a house, a bank account in your name alone, or an investment account without a beneficiary designation. A trust only protects what you actually transferred into it. A trust that exists on paper but was never funded does nothing for the assets left outside it.

Who inherits if there is no will either?

California’s intestate succession statutes control the outcome under Probate Code § 6400. For community and quasi-community property, a surviving spouse takes all of it, both their own half and the half that belonged to the person who died, under Probate Code § 6401(a)-(b). Separate property is split differently depending on who survives: the spouse takes all of it if there are no surviving children, parents, or siblings, one-half if there is one child or that child’s descendants (or no children but a surviving parent or sibling), and one-third if there are two or more children, under Probate Code § 6401(c). If nothing passes to a spouse, or the person was unmarried, the estate passes first to children and their descendants, then to parents, then to siblings and their children, then to grandparents and their descendants, moving outward under Probate Code § 6402. Stepchildren who were never legally adopted and unmarried partners generally inherit nothing under these statutes.

Does probate cost more when there is no trust?

Probate itself carries statutory fees regardless of whether the underlying estate plan was a will or nothing at all. The executor or administrator is entitled to a fee set by Probate Code § 10800: 4 percent of the first $100,000 of the estate, 3 percent of the next $100,000, and 2 percent of the next $800,000, with lower percentages on larger amounts. The estate’s attorney is entitled to an identical fee under Probate Code § 10810, calculated separately on the same schedule. On a $1,000,000 estate, that schedule produces $23,000 for the executor and another $23,000 for the attorney, $46,000 in ordinary statutory fees before court costs or bond. These fees run on the gross value of the estate, with no reduction for a mortgage or other debt against it. A living trust, properly funded, avoids this fee schedule entirely because there is no probate case to administer.

Does dying without a trust trigger probate no matter the size of the estate?

Not always. California requires formal probate only when the probate estate exceeds $208,850 in gross value, under Probate Code § 13100, for deaths on or after April 1, 2025. Below that threshold, an heir can often use a simplified personal property affidavit instead of opening a full probate case. But that threshold counts only probate assets. Anything already passing through joint tenancy, a payable-on-death account, or a beneficiary designation does not count toward it and does not need probate at all, trust or no trust.

How long does this take?

Most California probate cases run twelve to eighteen months from the date the court appoints a personal representative. A funded living trust generally does not carry a similar court timeline because there is no case for the court to supervise, though the trustee still has to gather assets, pay debts, and account to beneficiaries before final distribution.

What to do next

If you don’t have a funded living trust, the fastest way to find out what your family would actually face is to look at what you own and how it is titled today. An estate plan built around a properly funded trust keeps that decision with you instead of the intestate succession statutes, and keeps the process out of probate court. Talk to an estate planning attorney about what is titled in your name alone and what a trust would actually need to hold to work.

Figures verified July 2026.