Do I Need a Will or a Living Trust in California?

Written by Trust Law Legacy Group, APC, an Estate Planning, Trust & Probate Law Firm in San Jose, California. Updated September 2026.

What Is a Will in California

A will (formally, a “last will and testament”) is a legal document that states who should receive your assets after you pass, names an executor to carry out your wishes, and (importantly for parents) names a guardian for your minor children. California Probate Code section 6110 sets the formalities: the will must be in writing, it must be signed by the testator (or in the testator’s name, in the testator’s presence and by the testator’s direction), and it must be witnessed by at least two people who are present at the same time and who understand that the document they are signing is your will. That last requirement, two witnesses in the room together, is where most do-it-yourself wills fail. The California Courts self-help center outlines these basics in its guide to wills, estates, and probate court.

A will only takes effect after death, and only after it is validated by the probate court. It also does nothing to help you or your family if you become incapacitated while you are still alive.

What Is a Living Trust in California

A revocable living trust is a legal arrangement you create while you are alive. You transfer your assets (your home, bank and investment accounts, and other property) into the trust, and you continue to control everything as the trustee. In fact, you can change or revoke it at any time: Probate Code section 15401 lets the settlor revoke a revocable trust either by whatever method the trust document itself provides, or by a signed writing (something other than a will) delivered to the trustee during the settlor’s lifetime. No court, no filing, no public record. Eventually, when you pass, a successor trustee you chose distributes your assets to your beneficiaries directly, without court supervision.

Because a properly “funded” living trust legally owns your assets, those assets do not have to go through probate. A living trust also lets a trusted person step in to manage your affairs if you become incapacitated, something a will cannot do.

Will and Living Trust Key Differences

Feature	Will	Living Trust
Avoids California probate	No, it goes through probate	Yes, when properly funded
Privacy	Public court record	Private, stays out of court
Plans for incapacity	No	Yes
Names a guardian for minor children	Yes	No (this is done in a will)
Typical timeline for family	12 to 24 months in probate	Weeks to a few months
Takes effect	Only after death	Immediately, and continues after death

Does a Will Avoid Probate in California

No. In fact, this is the single most common misunderstanding we hear during a design meeting. A will does not avoid probate. It is essentially a set of instructions to the probate court. In California, probate is a public, court-supervised process that commonly takes 12 to 24 months and involves statutory fees based on the gross value of the estate (not your equity). Consequently, for a family home in San Jose, those fees add up quickly. Therefore, a properly funded living trust is one of the most common ways California families keep their estate out of probate. The California Courts publish a public guide to what happens to property after someone dies.

The statute is blunt about it. Under California Probate Code section 8200, whoever holds the will must deliver it to the clerk of the superior court within 30 days of learning that the testator has died, unless a petition for probate has already been filed. A will does not quietly pass property to your family. It is filed with a court, and from that point the file is public.

The cost is set by statute, not by negotiation. Probate Code section 10810 fixes the attorney’s fee for ordinary services at 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, 1 percent of the next $9 million, and one-half of 1 percent of the next $15 million. Section 10800 gives the personal representative an identical schedule, so on most estates that same amount is paid twice. Section 10800 also measures the fee on the value of the estate accounted for without reference to encumbrances, which is why the mortgage on a San Jose home does not reduce the bill. You can run your own numbers on our California probate fee calculator.

Do You Need Both a Will and a Trust

Often, yes. Many California estate plans pair a living trust with a short “pour-over will.” The living trust does the heavy lifting (avoiding probate and planning for incapacity) while the pour-over will acts as a safety net that directs any assets you did not transfer into the trust, and (for parents) names a guardian for minor children. In addition, a complete plan includes a durable power of attorney and an advance healthcare directive, so someone you trust can act for you if you cannot.

How to Decide What Fits Your Family

A living trust is often the better fit if you own a home, have minor children, want privacy, want to avoid probate, or want a plan for incapacity. By contrast, a simple will may be enough if your estate is small and you do not own real estate. Because every family is different, the right answer depends on your specific assets, goals, and who you want to protect. That is exactly what we walk through, step by step, during a design meeting. Learn more about our living trust services, wills, and probate guidance.

Living Trust Attorney in San Jose

At Trust Law Legacy Group, APC, an estate planning law firm in San Jose, we help Bay Area families choose between a will and a living trust, or combine them, in plain language, with no pressure. If a loved one has already passed without a trust, we also guide families through California probate. We serve San Jose, Santa Clara County, Milpitas, Fremont, Sunnyvale, Santa Clara, Cupertino, Campbell, Los Gatos, and the wider Bay Area, in person or by video. If you have been putting off your estate plan, a design meeting is a calm, jargon-free place to start.

Frequently Asked Questions

Is a living trust better than a will in California?

For most California homeowners and families with minor children, a living trust offers advantages a will cannot: it avoids probate, keeps your affairs private, and plans for incapacity. A will is simpler and less expensive up front, but it still goes through probate. Still, the best choice depends on your specific situation.

How much does probate cost in California?

California sets statutory probate fees based on the gross value of the estate, not your equity, and the process commonly takes 12 to 24 months. Because fees are tied to the full value of assets like a home, they can be significant. Therefore, avoiding probate with a living trust is a common way families reduce this burden.

Does a living trust avoid probate?

Yes, when it is properly funded. “Funding” means transferring your assets into the trust so the trust legally owns them. Assets titled in the name of a properly funded living trust generally pass to your beneficiaries without probate.

Can I write my own will or trust in California?

It is legally possible, but do-it-yourself documents are a common source of costly mistakes. An unfunded trust, an improperly witnessed will, or missing incapacity documents can send your family to probate anyway. Working with a California estate planning attorney helps ensure your plan actually works the way you intend.