Here's the part that catches people off guard: California probate fees aren't based on what you actually own. They're based on your home's gross value, calculated without subtracting your mortgage. A $700,000 house with $400,000 still owed on it? Probate fees get calculated on the full $700,000, per California Probate Code section 10810.
This guide breaks down how living trusts and wills actually work in California, when each makes sense, and why a properly funded trust is the tool most homeowners reach for to sidestep probate entirely.
TL;DR
- A will directs your assets but generally still requires California probate
- A funded living trust can transfer your home and accounts without probate
- Most homeowners need both: a living trust plus a pour-over will
- Trusts add privacy and incapacity protection; wills stay simpler, public, and slower
- Choose based on real property ownership, estate size, and privacy goals
Living Trust vs. Will: Quick Comparison
| Factor | Will | Living Trust |
|---|---|---|
| Cost | Lower upfront, expensive probate later | Higher upfront, minimal settlement cost |
| Probate | Required in California | Avoided when properly funded |
| Privacy | Becomes public court record | Stays private, never filed |
| Incapacity | None; may require conservatorship | Successor trustee steps in immediately |
| Time to Settle | 9-18 months or longer through formal probate | Weeks in most cases |
What Is a Will in California?
A will is a written document stating who gets your assets after you die. California law is specific about how it needs to be executed.
Under Probate Code section 6110, a valid will must:
- Be in writing
- Be signed by you (or someone signing at your direction, in your presence)
- Have two witnesses present at the same time who understand they're witnessing your will
A will lets you name an executor, designate guardians for minor children, and spell out exactly who gets what. What it doesn't do is skip probate.
If you own real property in California, your estate almost certainly goes to court. Probate fees are set by statute based on the estate's value, not on what you still owe on the house.
Use Cases of a Will
Wills work best in narrower situations:
- Small estates without California real property
- Estates under $208,850 (deaths on or after April 1, 2025) that may qualify for simplified transfer
- A pour-over will paired with a living trust as a backup safety net
That last point matters. A standalone will and a pour-over will look similar on paper, but they serve different roles. A pour-over will catches anything you forgot to move into your trust and funnels it there after death.
What Is a Living Trust in California?
A revocable living trust involves three roles, and in most cases, you fill all three while you're alive:
- Trustor (you): creates the trust and places assets into it
- Trustee (also you, initially): manages the trust property
- Beneficiary (still you, during your lifetime): benefits from the trust
Unlike a testamentary trust that only kicks in through a will after death, a living trust operates the moment you sign it, according to California court guidance on living trusts.
Homeowners typically choose a living trust to:
- Keep a home titled in the trust out of probate court
- Preserve privacy, since a trust is never filed publicly
- Allow a successor trustee to step in during incapacity without a conservatorship
- Distribute assets with the trust document and a death certificate, not a judge's order
The Funding Requirement Nobody Warns You About
A trust only works if it's funded. That means retitling your home, bank accounts, and investments into the trust's name. Skip this step, and the trust is just an expensive piece of paper. Your house still goes through probate.
A complete package typically pairs the trust with three companion documents:
- A pour-over will (catches anything left outside the trust)
- A durable power of attorney
- An advance healthcare directive
When a Living Trust Makes Sense
Living trusts make the most sense for:
- California homeowners wanting to keep the house out of probate court
- Families with multiple properties or accounts
- Anyone prioritizing privacy over the public record that comes with a will
Formal probate typically runs 9 to 18 months, sometimes longer, according to the California Courts overview of formal probate. A funded trust sidesteps that timeline almost entirely.
For homeowners who want that full package already assembled, HomeTrust is one California option. Marco Mariani, a Licensed Document Assistant (LDA #231), has prepared more than 10,000 California trusts since 1992.
His individual living trust package is a flat rate starting at $409 / settlor plus recording and notary fees per Settlor, typically prepared in 1–3 business days. It includes the trust, pour-over will, power of attorney, healthcare directive, and the grant deed needed to move your home into the trust's name.
Living Trust vs. Will: Which Is Better for California Homeowners?
Ask yourself these questions:
- Do I own real property in California?
- Is privacy important to me and my family?
- Do I want someone who can step in immediately if I'm incapacitated?
- Do I have minor children who need a named guardian?
If you answered no to the first three and yes only to the fourth, a simple will might cover you, especially if your estate is small and includes no real property.
If you own a home, a living trust paired with a pour-over will is usually the stronger fit. Most complete California estate plans use both: the trust handles the heavy lifting, and the pour-over will acts as a net underneath it.
Trust Funding: The Step Homeowners Often Miss
Here's the uncomfortable truth: an unfunded trust protects nothing. If your home is still titled in your personal name when you die, it goes through probate no matter how nicely worded your trust document is.
Assets that typically need retitling:
- Primary residence (and any rental, vacation, or investment property)
- Bank accounts — checking, savings, money-market, CDs
- Investment accounts — brokerage, mutual funds, 529 plans
- Business interests — LLC shares, S-corp stock, partnerships
Assets that usually stay out of the trust:
- Retirement accounts (IRAs, 401(k)s, 403(b)s) — do not retitle; update beneficiary designations instead to avoid immediate income tax on the full balance
- Vehicles — California's transfer process is often not worth the hassle for a car
For real estate, retitling typically involves these steps:
- Prepare a new deed naming you as trustee
- File a Preliminary Change of Ownership Report and Prop 19 exclusion form to avoid property-tax reassessment
- Notarize the documents and record the deed with the county
HomeTrust includes deed preparation and funding guidance in its package. It also offers a separate Trust Rescue service for anyone who already has a trust that was never properly funded.
Frequently Asked Questions
What is the average cost of a will and trust in California?
A basic attorney-drafted will in California is often a few hundred dollars, while attorney-drafted living trusts commonly run into the thousands. Flat-rate options like HomeTrust’s package, starting at $409 / settlor plus recording and notary fees per Settlor, include the trust, pour-over will, power of attorney, and healthcare directive.
Is it better to have a will or a trust in California?
For most California homeowners, a living trust is the better primary tool because it can keep the home out of probate. A will alone can work for very simple estates with no real property.
Do I need a will or a trust in California?
Most California homeowners benefit from having both: a living trust to avoid probate, plus a pour-over will as a backup for anything left out.
Should I put my house in a trust in California?
Yes, if you want the home to skip probate. You must transfer title into the trust with a properly recorded deed—listing the house in the trust document alone is not enough.
What assets should not be in a trust in California?
Retirement accounts like IRAs and 401(k)s generally shouldn't be retitled into a trust, since it can trigger immediate taxes. Vehicles are also usually left out and handled through a pour-over will instead.
What is a living trust in California?
A living trust is a legal arrangement you create during your lifetime to hold assets for named beneficiaries, with a trustee managing those assets. When you fund it properly, its main advantage is avoiding probate.
