Frequently asked questions

Yes. Everyone should have an estate plan, regardless of the size of their estate.

Even if you don’t consider your assets substantial, an estate plan is about much more than wealth. It ensures that you remain in control of what happens if you become incapacitated or pass away, rather than leaving those decisions to the court system or default state laws.

A well-designed estate plan allows you to:

• Choose who will manage your finances and make personal and healthcare decisions if you are unable to do so yourself.
• Avoid unnecessary court involvement, which can be time-consuming, costly, and public—even for modest estates.
• Make things easier for your loved ones by eliminating uncertaintly and avoiding conflict and delay during an already difficult time.
• Ensure your assets go to the people you choose rather than being distributed under California’s intestacy laws.
• Plan for real-life circumstances such as blended families, minor children, or loved ones with special needs or creditor concerns.

In short, an estate plan is not just about the size of your estate—it is about control, clarity, and protecting the people you care about.

A will and a revocable living trust are both key estate planning tools, but they serve different functions.

A will is a legal document that takes effect after your death. It allows you to state how you want your assets distributed and to name an executor—the person responsible for managing your estate, paying debts, and carrying out your instructions. A will does not avoid probate, so assets distributed through a will are generally handled under court supervision before they can be transferred to beneficiaries.

A revocable living trust, by contrast, takes effect during your lifetime. You typically serve as your own trustee while you are alive, and you name a successor trustee to manage and distribute trust assets if you become incapacitated or pass away. Because the trust holds title to your assets, they can generally be managed and distributed outside of probate, often with greater privacy, efficiency, and continuity.

Most comprehensive estate plans that include a trust also include a “pour-over will.” This type of will works together with the trust by directing any assets not already titled in the trust at the time of death to be transferred (“poured over”) into the trust and administered according to its terms.

A revocable living trust generally does not provide creditor protection during your lifetime. Because you retain control over the assets during your lifetime, those assets are generally still considered available to creditors. However, there are other types of trusts—often referred to as asset protection or irrevocable trusts—that can provide varying levels of protection from creditors depending on how they are structured and when they are created. These types of trusts typically involve giving up some control over the assets in exchange for potential protection benefits. For most basic estate plans, the primary purpose of a revocable living trust is probate avoidance, seamless management of assets, control over distributions, and incapacity planning, not asset protection.

Funding a trust means transferring ownership of your assets from you as an individual to you as trustee of your trust. For example, instead of holding title as “John Doe,” your assets are retitled as “John Doe, Trustee of the John Doe Living Trust dated ___.”

This step is essential because it ensures your assets are governed by the trust’s terms. Without proper funding, assets may still be subject to probate even if a trust exists.

If you die without an estate plan, California law will determine who inherits your property, who will administer your estate, and, in some cases, whether your loved ones must go through probate. In addition, if you become incapacitated before your death, your family may face significant legal hurdles because no one has been legally authorized to act on your behalf.

Distribution of Your Assets

If you do not have a valid will or trust, you are considered to have died intestate. California's intestate succession laws determine who inherits your probate estate. Depending on your family circumstances, your assets may pass to your surviving spouse, children, parents, siblings, or other relatives. These statutory rules may not reflect your wishes or family dynamics.

To be clear, not all assets are distributed under these laws. Assets that are held in joint tenancy or that have a valid beneficiary designation—such as many life insurance policies, retirement accounts, payable-on-death (POD) accounts, transfer-on-death (TOD) accounts, and certain other assets—generally pass directly to the surviving joint owner or named beneficiary, regardless of whether you have an estate plan.

Probate May Be Required

Many assets owned solely in your name that do not have a beneficiary designation or other non-probate transfer mechanism may require a court-supervised probate proceeding before they can be transferred to your heirs. Probate can involve court filings, mandatory waiting periods, and additional time and expense. 

You Cannot Choose Who Will Handle Your Estate

Without an estate plan, you lose the opportunity to choose the person you want to handle your affairs. Instead, if probate is required, the court will appoint a personal representative according to California law. Although the court follows statutory priorities, family members may disagree about who should serve, sometimes resulting in delays, additional costs, or litigation.

Minor Children

If you have minor children, a will allows you to nominate the person you would like to serve as their guardian if both parents are deceased. Without this nomination, the court must determine who will care for your children without the benefit of your written wishes.

Incapacity Planning Is Also Missing

An estate plan is not only about what happens after death. If you become unable to manage your finances or make medical decisions and have not signed financial and healthcare powers of attorney, your loved ones may need to petition the court for a conservatorship before they can act on your behalf.

Peace of Mind Through Planning

A comprehensive estate plan allows you to decide who will receive your assets, who will administer your estate or trust, who should care for your minor children, and who should make financial and medical decisions if you become unable to do so. It also allows you to coordinate your trust, beneficiary designations, and the way title is held to your assets so they work together to carry out your wishes as efficiently as possible. Thoughtful planning can reduce delays, minimize unnecessary court involvement, avoid family disputes, and provide peace of mind for you and your loved ones.

Probate is the court-supervised process used to settle a person’s estate after death. It is generally required for assets held in someone’s name alone (not jointly or in trust) and involves court oversight to confirm authority, pay debts and taxes, and distribute assets to beneficiaries.

Probate is time-consuming, costly, and public. Even the simplest probates can take 9-18 months to complete, require formal court procedures at each stage, and make details about the estate part of the public record. 

By contrast, proper estate planning—often using a trust and beneficiary designations—can allow assets to transfer more efficiently, privately, and with less administrative burden.

Probate costs in California include statutory fees, extraordinary fees, and court-related costs.

Statutory fees are set by the California Probate Code and calculated based on the gross value of the estate (not net value). Under the Probate Code, both the attorney and the executor/administrator are entitled to fees equal to: 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, with decreasing percentages above that. For example, if the gross value of an estate is $1 million, the attorney and the executor/administrator will each be entitled to $23,000 in statutory fees. 

In addition, there are extraordinary fees, which may be awarded by the court for additional services outside of the standard probate administration, such as handling real estate transactions, complex tax matters, business interests, or litigation. These fees are based on the time and complexity of the work performed and must be approved by the court.

There are also costs and expenses, such as court filing fees, appraisal fees, publication costs, and bond premiums, which are separate from attorney and executor compensation.

Adding a child or another family member as a joint owner of your home, bank accounts, or other assets may avoid probate for those assets, but it can also create significant legal, financial, and tax consequences. For example, you may unintentionally give that person immediate ownership rights, expose your assets to their creditors, divorce, or lawsuits, create gift tax or property tax issues, or unintentionally disinherit other beneficiaries. In most cases, there are far better ways to achieve your goals while maintaining control of your assets during your lifetime. Before adding anyone to title, it is wise to discuss your options with an experienced estate planning attorney.

We recommend that trustees consult with an attorney at the outset of the trust administration. Trustees often believe they can handle everything on their own, but trust administration involves legal and procedural steps where mistakes can become costly or create delays and even potential liability. With initial guidance, many trustees are able to manage much of the day-to-day administration themselves, but an attorney can help ensure the process is started correctly, deadlines and notice requirements are understood, and key legal documents—such as deeds for real property transfers or paperwork required by financial institutions—are properly prepared. An attorney can also assist with the preparation of the trust accounting, which reports all trust assets, income, expenses, and distributions in a format that is compliant and acceptable to beneficiaries.

While trustees and administrators may need to appear in person at banks, financial institutions, or similar organizations to complete account transfers or sign institution-specific paperwork, our services can be offered remotely. We work with clients throughout California and across the country, and most of our guidance, document review, meetings, and legal work can be completed by phone, video conference, and secure electronic exchange. We provide full remote support throughout the process to ensure everything is handled correctly and efficiently.