Deciding how to pass on your home, savings, or business is one of the most essential choices you can make.
At Vistas Law Group, we help Californians every day create estate plans that reflect their goals and protect their families. With over 20 years of combined experience, our bilingual team has guided clients through estate planning, probate, and trust litigation throughout the state.
In this article, we compare living trusts and wills under California law, explaining the benefits and limitations of each so you can make an informed decision that fits your life and legacy.
What is a Will?
A will is a written document that instructs the probate court on how to distribute the testator’s property after their death. It takes effect only upon the testator’s passing and must be lodged with the court within 30 days. Below are the usual items found in a California will.
- The executor who gathers assets, pays debts, and reports to the court
- Guardian for children younger than eighteen
- List of beneficiaries and the property each one receives
- Instructions for funeral or burial wishes
Without clear language, the court relies on state law, which can prolong the probate process and increase costs for the estate.
Child Guardianship
Parents often think relatives will “step in,” yet the court cannot assume that they are the best suited. Naming a guardian in the will provides the judge with a clear directive, thereby preventing disputes among relatives. California law even lets parents disinherit a child, but it does not erase any unpaid child support that existed before death.
Electronic Wills: Why California Hasn’t Adopted Them
Some states allow emails or texts to serve as wills, but California still requires a paper document signed in front of two witnesses. The state views electronic files as risky because they lack professional oversight and are easily alterable. Missing witnesses also increase the chance that a disgruntled heir claims the testator lacked capacity, driving up litigation costs. Handwritten wills create similar headaches, which is why formal signing rules remain the safest route.
What is a Trust?
A trust is an arrangement in which a trustee holds and manages assets on behalf of named beneficiaries. Because the trust exists now, it can continue long after the trustor’s death, distributing income or principal according to the timeline outlined in the document.
Living Trusts
A living trust is formed during the trustor’s lifetime by retitling property into the name of the trust. The trustor often serves as the first trustee, keeping full control while alive. Unless the document states otherwise, the trust is revocable, meaning the trustor can modify the terms or transfer property in and out of the trust until they become incapacitated or die.
Upon the trustor’s death, the trust typically locks, preventing further changes and bypassing probate. The successor trustee steps in immediately and can keep managing real estate, businesses, or investments without court supervision.
Testamentary Trusts
A testamentary trust is created within a will and takes effect only after the will is probated. While it provides flexibility similar to a living trust once funded, the assets must still pass through probate before being distributed. Families who prefer ongoing management without public court filings often opt for a living trust instead.
Key Differences Between Wills and Trusts in California
Both tools pass assets to loved ones, yet they operate in very different ways. The comparison table below highlights the main contrasts we discuss with clients.
| Will vs. Living Trust at a Glance | ||
| Feature | Will | Living Trust |
| Probate Required | Yes, assets pass through the court | No, assets stay out of court |
| Privacy | Public record once filed | Private, only the trustee and heirs see the terms |
| Control After Death | Ends when probate closes | Ongoing management for years, if desired |
| Cost to Create | Lower setup cost but court fees later | Higher setup cost, minimal court fees later |
| Executor vs. Trustee | The executor works only during probate | Trustee begins to work at incapacity or death and continues indefinitely |
| Estate Tax Planning | Limited options | Can include tax-saving clauses |
| Guardians for Minors | Yes | No |
In short, families use trusts to avoid probate, maintain financial privacy, and manage property under one manager without court oversight. A will, although simpler, triggers statutory fees that can equal at least 4% of the estate value and makes financial details public.
Dying Without a Will in California (Intestacy)
An adult who dies with no valid will is considered intestate. The probate court then uses California’s order of kinship to assign property, which can leave unmarried partners or step-children with nothing. The judge also decides who will raise minor children and who will serve as their administrator. A solid estate plan protects relatives from unexpected tax bills and prevents property from falling into unintended hands.
Do You Need a Will or Living Trust?
The right choice depends on goals, asset mix, and family structure. Consider the following questions before making a decision.
- Estate size: Homes worth over $184,500 must enter formal probate unless held in trust.
- Desire to skip probate: Trusts transfer property faster and with fewer fees.
- Privacy concerns: Wills become public; trusts do not.
- Incapacity planning: A trustee can manage assets if the trustor is unable to do so, whereas a will offers no assistance until death.
- Distribution control: Trusts let you stagger gifts for children or restrict spending.
- Multi-state property: Trusts simplify title transfers in other states.
- Tax goals: Certain trusts shelter life insurance or reduce estate taxes for larger estates.
A modest estate with a single home and minimal savings often works well with a will plus beneficiary designations on financial accounts. Larger estates, blended families, or individuals holding rental properties in multiple counties typically benefit from a living trust.
Combining a Living Trust and Will
Many Californians choose both tools because they complement each other. The living trust owns major assets during the trustor’s lifetime, allowing the successor trustee immediate access upon the trustor’s passing. A pour-over will then direct any asset still in the trustor’s name, such as a forgotten vehicle, to “pour” into the trust, closing gaps.
The will will also name guardians for children and an executor to handle last expenses and tax returns. Combining both documents creates a streamlined plan, with the trust avoiding probate for virtually everything, while the will catches any stray assets that may slip through the cracks.
Contact Vistas Law Group Today
Estate planning does not have to feel overwhelming. Our team at Vistas Law Group handles living trusts, wills, probate, and trust litigation on a weekly basis, and we take pride in guiding families in both English and Spanish. Call 213-745-8747 or visit our Contact Us page to ask questions or schedule a planning session. Let us help you safeguard what matters most and give your loved ones an easier tomorrow.