Estate planning
Do I need a living trust if I already have a will?
A will decides who receives what. It does not decide whether a court has to be involved in handing it over.
The short answer is that a will and a trust do different jobs, and in California the difference is measured in months and in money.
A will says who receives what. It does not move anything on its own. For a will to take effect, someone has to file it with the court and ask to be appointed, and the estate then goes through probate: a public, court-supervised proceeding with notice periods fixed by statute. In this state that commonly runs a year or more, and attorney and representative compensation is set by a statutory formula on the gross value of the estate. Gross, not net. The mortgage does not reduce it.
A revocable living trust is a container. During your life you are the trustee, you can change it whenever you like, and nothing about it is filed with anyone. When you die, the person you named as successor trustee has authority immediately, from the document itself, without asking a court for permission.
So is the will useless?
No. You still need one, and it does a specific job alongside the trust. A pour-over will catches anything that was never transferred into the trust and directs it there. It is also where you nominate a guardian for minor children, which a trust cannot do.
The part that decides the outcome
A trust only avoids probate for the property it actually owns. Signing the trust does not move the house into it; a deed has to be prepared and recorded. Accounts have to be retitled. That work is called funding, and it is the single most common gap we find in plans drafted elsewhere.
An unfunded trust is a document, not a plan. If you already have one, the useful question is not whether you have a trust. It is whether the trust owns your house.
Also on estate planning
- At what age should my children inherit?Eighteen is the default, it is rarely the answer, and choosing something else is an ordinary decision rather than a judgement on your children.
- How do I provide for my spouse without disinheriting my children?In a second marriage the two goals genuinely compete, and a plan that does not choose between them chooses by accident.
- What documents do I need besides a living trust?Three documents sit alongside the trust, and they are the ones most likely to be needed first.
- I signed my trust years ago. Is my house actually in it?Signing the trust created the container. Whether anything was put inside it is a separate question with a checkable answer.