What Happens If You Don’t Have a Trust in California?

If you die without a trust in California and you own a home, your estate most likely goes through probate, a public court process that usually takes about one to two years and charges statutory fees based on the gross value of your estate, not the work involved. A will, if you have one, decides who inherits and who’s in charge. It does not keep your family out of court. And if you have no will and no trust at all, the state’s intestacy rules decide who gets what, in an order you don’t get to choose.

That’s the blunt version. The longer answer is more hopeful: for some estates, you can avoid probate without a trust, and California recently made those off-ramps wider. Here’s how to tell which situation you’re in.

A will doesn’t avoid probate — and most people learn that too late

A will does not avoid probate in California. This is the single biggest misunderstanding I see, so I’ll say it plainly: “I have a will” and “my family avoids court” are not the same sentence. A will is a set of instructions to a probate judge. It names who inherits and who you want as executor, and then the estate goes through the public probate process so the court can carry those instructions out.

So a will is worth having. It just does a different job than people think. It controls where your assets go; it doesn’t control how they get there. For a California homeowner, the house is almost always large enough to pull the whole estate into probate, will or no will.

What probate actually costs you in California

Probate in California is public, slow, and priced on the size of the estate rather than the effort. Expect roughly one to two years from start to finish. The attorney and the personal representative are each entitled to a statutory fee set by Probate Code section 10810, calculated on the gross value of the estate, meaning a house counts at its full value, not its value minus the mortgage.

On a home worth around $1 million, that statutory attorney fee runs in the neighborhood of $23,000, with the same amount again allowable to the personal representative. Two things make people wince: the fee ignores how simple or complex the work actually was, and the whole file is part of the public record. Anyone can look up what you owned and who got it.

What happens if you have no will AND no trust (intestacy)

If you die with no will and no trust, California’s intestacy rules in the Probate Code decide who inherits, and the order is fixed by statute, not by what you would have wanted. The general structure for a married Californian works like this:

• Community property (most of what a married couple builds together) passes entirely to the surviving spouse.
• Separate property (typically what you owned before marriage or inherited individually) is split by formula: if you leave one child, the spouse and that child share it; if you leave two or more children, the spouse takes one-third and the children share the rest (Probate Code section 6401).

If there’s no spouse, the estate moves down a statutory ladder: children, then parents, then siblings, and outward from there. The point isn’t the exact fractions. The point is that a stranger to your family — the Probate Code — writes your plan if you don’t. That’s the version nobody wants, and it’s the easiest one to avoid.

Can you avoid probate without a trust in California?

Yes. In some situations you can avoid probate without a trust, and it’s worth knowing the honest toolkit before you assume you need one. There are four real tools, each with a job and a limit.

Beneficiary designations and payable-on-death

Accounts with a named beneficiary skip probate automatically. Retirement accounts, life insurance, and payable-on-death (POD) or transfer-on-death (TOD) bank and brokerage accounts pass straight to the person you named, no court required. These are the quiet workhorses of probate avoidance, and the most commonly forgotten. An out-of-date beneficiary form overrides your will, so check them.

Joint title — useful, but not free of risk

Holding property in joint title with right of survivorship lets it pass to the co-owner at death without probate. It sounds simple, and for spouses it often makes sense. But adding a child to title as a co-owner during your lifetime is a different animal: you’ve made a present gift, exposed the property to that child’s creditors and divorce, and possibly created a capital-gains problem down the road. Adding your kids to the deed is rarely the shortcut it looks like; I walk through why on its own page.

California’s small-estate procedures (newly expanded)

California has streamlined court procedures for smaller estates, and they got meaningfully bigger in 2025. As of April 1, 2025 (under AB 2016):

• The small-estate affidavit for personal property (bank accounts and the like, no real estate) now covers estates up to $208,850. Heirs collect with a sworn affidavit instead of full probate.
• A new Petition to Determine Succession to a Primary Residence (Probate Code §§13150–13158, form DE-310) covers a decedent’s primary home worth up to $750,000, avoiding full probate for that house. The home is excluded from the $208,850 personal-property limit, so both can be used together.

The practical upshot: a smaller California estate may avoid full probate without ever having a trust. If the primary residence is worth $750,000 or less, your heirs may be able to clear title through that streamlined petition after you’re gone. (The next inflation adjustment to these figures is April 1, 2028.)

A funded revocable living trust — the homeowner’s main tool

For most California homeowners above those small-estate limits, a funded revocable living trust is still the cleanest path out of probate. “Funded” is the load-bearing word: the trust only works if you record a deed moving the house into it. A trust sitting in a binder while the house stays in your own name avoids nothing. If you already have a trust, the honest first question is whether it’s actually funded, because an unfunded one is a gate with no fence.

What happens to assets you forgot to put in your trust?

Assets left out of your trust are caught by a pour-over will, a companion document that directs anything still in your name at death to “pour over” into the trust. It’s the safety net for the bank account you opened last year and forgot to retitle.

Here’s the catch the document mills skip: a pour-over will does not avoid probate. If the forgotten asset is big enough, it can still drag that asset through the court process before it ever reaches the trust. The pour-over will is a backstop, not a plan. The plan is funding the trust while you’re alive. That’s also why a trust and a will work together rather than competing, something I lay out in will vs. living trust in California.

The honest caveat

A trust is not magic, and it is not free. It doesn’t lower your income, estate, or property taxes while you’re alive. California has no state estate tax or inheritance tax anyway, and anyone who pitches a revocable trust as a tax shelter is selling something. A trust costs more up front than a basic will, and if you never fund it, you’ve paid for a document that does nothing. The right answer for you depends on what you own. If your estate fits inside the new small-estate limits, you may not need a trust at all, and I’ll tell you that. What a living trust actually costs in California is its own honest conversation.

Talk to a real California estate attorney

If you’re not sure whether your family would land in probate, that’s the question worth answering before anything else. I’ll look at what you own and how it’s titled, tell you whether you genuinely need a trust or whether a simpler tool covers you, and give you a straight answer either way, no upsell.

Talk to Eric Ridley — a free 60-minute consultation by phone or Zoom, anywhere in California. Or call (805) 244-5291. You’ll leave knowing where you stand, whether or not you hire me.

Related reading: Will vs. living trust in California · How much a living trust costs · Adding a child to the deed vs. a trust · Is your trust actually funded?

Frequently asked questions

What happens if you don’t have a trust in California?

If you die without a trust and own a home, your estate most likely goes through probate — a public court process that typically takes about one to two years with statutory fees based on the gross value of the estate. A will controls who inherits but does not avoid probate. With no will and no trust, California’s intestacy rules decide who inherits.

Can I avoid probate without a trust in California?

Sometimes, yes. Probate can be avoided without a trust through beneficiary designations, payable-on-death accounts, certain joint title, and California’s small-estate procedures. As of April 1, 2025, a small-estate affidavit covers personal property up to $208,850, and a petition for a primary residence covers a home worth up to $750,000. Above those limits, a funded trust is usually the cleanest path.

How do I avoid probate on a California house?

For a typical homeowner, the most reliable way is a properly funded revocable living trust — meaning a recorded deed that puts the home in the trust. If the home is worth $750,000 or less, heirs may instead use a Petition to Determine Succession to a Primary Residence after death. Joint title and transfer-on-death deeds can also work but carry trade-offs.

Does a will avoid probate in California?

No. A will does not avoid probate. It tells the court who inherits and who you want in charge, but the estate still goes through the public probate process to carry those instructions out. “I have a will” and “my family avoids court” are not the same sentence.

What happens to assets you forgot to put in your trust?

A pour-over will catches them, directing anything still in your name to pour into the trust at death. But a pour-over will does not skip probate — a large forgotten asset can still trigger the court process. That’s why funding the trust during your lifetime matters more than the document itself.

This is general information about California law, not legal advice for your situation.