Protecting Your Family.
Preserving Your Legacy.

If I have a Will, Do I need a Trust?

by | Feb 1, 2023 | Trust Administration

The answer to this question depends upon your specific situation.

In California, a Will does not prevent your estate from going through probate.  Probate is the court oversight of the administration and distribution of a deceased person’s estate.  Probate is very expensive and time consuming for your heirs.  In addition, when an estate goes through Probate information regarding the estate is not kept private and is available to the public. For these reasons, most people would prefer for their estate to be distributed without Probate Court involvement.

So, what triggers probate? Typically, probate is required in California when a person has in their “probate estate” either real estate or assets that exceeds the statutory limit (in 2023 this limit is $184,500).  Keep in mind, the fair market value is used to determine the value of real estate and is not discounted by any mortgage that may be owed.  Generally, an individual’s “probate estate” includes the assets owned by that person at their death that are not held by a Trust, are not jointly owned with right of survivorship with someone who survives the deceased person, do not have a beneficiary, and are not otherwise exempt from probate.

If your estate is likely to trigger probate, you should consider speaking with an experienced estate planning attorney who can provide options for avoiding probate.  One of the most common tools used to avoid probate is a Revocable Living Trust (RLT).  By moving your assets into a RLT and/or strategically using beneficiary designations, your property can be kept out of your probate estate, thus avoiding probate for those assets.

Even if you have a Revocable Living Trust, you will still need a Will.  However, when you have a RLT a different type of Will is used which is referred to as a Pour Over Will.  A Pour Over Will gathers up any assets that may have been left in your probate estate when you pass away, and “pours” these assets into your RLT so that they can be distributed under the terms of the RLT. If these assets remaining in your probate estate do not meet the criteria for triggering probate, the pour over of these assets to the RLT can typically be done without Court involvement.

The added benefit of having a Revocable Living Trust is that it, along with other documents such as a Durable Power of Attorney and Advance Health Care Directive, provides protections for you should you become incapacitated and unable to make your own financial, legal, or health care decisions.  A Will does not do this and only becomes effective at your death.

Because all of the possible triggers for probate and all of the options for avoiding probate are beyond the scope of this blog posting, you should consult with an experienced estate planning attorney who can advise you of your options and prepare a customized estate plan that meets your specific needs.

The information you obtain at this site is not, nor is it intended to be, legal or tax advice. You should consult an attorney and tax specialist for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.