If you're a resident of California and trying to decide whether you need a living trust, you might be wondering what to take into consideration. What happens to your property under California laws if you don't have an estate plan? When might you want a living trust? Below is an introduction to what a living trust does, and whether it makes sense for your situation.
A "living" trust (also called an "inter vivos" trust) is simply a trust you create while you're alive. The beneficiaries you name in your living trust receive the trust property when you die. You could instead use a will, but wills must go through probate—the court process that oversees the transfer of your property to your beneficiaries.
Many people create a revocable living trust as part of their estate plan. These trusts can be modified or revoked at any time. Typically, you'll name yourself as the "trustee" of your trust. This means that while you are alive, you retain control of the trust and its property. In your trust document, you'll also name a "successor trustee" to take over and manage the trust (distribute your property) after you die. (If you create a shared living trust, as is often done by spouses, then your successor trustee would assume control after both spouses have died.)
In contrast, irrevocable trusts cannot be revoked or modified after they are signed. Irrevocable trusts can be useful tools for specific goals, like reducing taxes, but they require giving up ownership and control of trust property.
When you set up a living trust to transfer your property to your loved ones after your death, you can potentially save them a lot of time, hassle, and money. Property left through a will (rather than a living trust) might be tied up for months or even years in probate court, and could involve court costs and lawyers' fees. By contrast, property left through a trust can be distributed to your beneficiaries almost immediately, and often without the need for an attorney.
Some states have fully adopted a model law called the Uniform Probate Code, which streamlines the probate process, but unfortunately California is not one of these states. However, California does offer simplified probate processes for "small" estates:
If your estate qualifies for one of these shortcuts, the probate process might be straightforward and relatively inexpensive, so you might not need to worry about making a living trust just to avoid probate.
Additionally, in California, you can transfer real property using a transfer-on-death deed; this can keep your home out of probate without using a living trust.
Yes, you'll still need a will. This might seem confusing—isn't the point of a living trust to avoid needing a will? Yes, it is, and your will might never be used. But you should still write one, for one or both of the following reasons:
If you don't have a will, any property that isn't transferred by your living trust or other method (such as joint tenancy) will go to your closest relatives as determined by California state law.
Probably not. Revocable living trusts can help your estate avoid probate, but not federal estate taxes. But it's not an issue most people have to worry about, since the federal estate tax is levied only on estates worth more than $12.06 million (for deaths in 2022). This amount is adjusted slightly each year for inflation. Some states impose their own state estate tax, but California is not one of them.
If you do have an estate worth close to $12 million (or you and your spouse or partner have a combined estate of close to $24 million), you might be able to use a more complicated trust to reduce or avoid estate taxes, but you'll definitely need the help of a lawyer.
To make a living trust in California, you:
You can use WillMaker & Trust to make a living trust online, or on your desktop. WillMaker & Trust has a simple interview format that allows you to complete the trust at your own pace, and it gives you lots of legal and practical help along the way. Based on your responses, the program produces a living trust document customized for you and your situation. With WillMaker & Trust, you can also make a will, powers of attorney, health care directives, transfer on death deeds, and many other useful documents. Use it just for yourself or for your entire family.
For more on California estate planning issues, see California Estate Planning.