How We Build Your San Jose Estate Plan
A Will Alone Won’t Keep Your
Family Out of Probate.
Protect your home, your savings, and the people you love with a living-trust plan that keeps your wishes in control and your family out of court.
Estate Planning in San Jose
San Jose is the county seat, which means the probate department that would hear a Santa Clara County matter sits in the downtown Superior Court a few minutes from our office at 100 Century Center Ct. It is also the largest city in the Bay Area, and that shows up in the work: a Willow Glen bungalow held since the 1970s, a Berryessa townhome bought last year, and an Evergreen house with a permitted second unit out back are three different planning problems wearing the same address.
The long-held home is the most common place we start. Proposition 13 kept the assessed value low while the market value did not stay low, and Proposition 19, effective February 2021, narrowed the parent-child exclusion from reassessment. In most cases the child now has to make the home their own principal residence for the exclusion to apply at all, and the amount excluded is capped. A trust drafted before 2021 can quietly rest on a rule that no longer exists.
The same appreciation drives the probate exposure. California’s statutory probate fees are set by Probate Code sections 10800 and 10810 and are calculated on the gross value of the estate, not on the equity. The mortgage does not reduce them. For most San Jose homeowners the house alone carries the estate well past the point where the small-estate procedures are available, which is usually what earns a funded living trust its place here.
Two patterns show up in San Jose more than in the smaller cities around it. The first is a second property (a duplex, a rental, or a permitted ADU that now has a tenant), which has to be dealt with by name, because a successor trustee needs to know who collects rent and who is responsible for the unit. The second is a family spread across state or national lines: real property held outside California can require a separate ancillary probate in that state, and where a spouse is not a United States citizen the unlimited marital deduction does not apply automatically. We work with families across Willow Glen, the Rose Garden, Almaden Valley, Evergreen, Berryessa, Cambrian Park, Blossom Valley, Santa Teresa, Naglee Park, Japantown and Alum Rock.
What We See Most in San Jose
The Willow Glen house and the 1990s binder
A home held for decades, a trust signed properly somewhere along the way, and a grant deed that still names the owners as individuals. The documents are usually fine. The funding never happened, so the house is still headed for court.
A rental or an ADU nobody planned for
A duplex, a back unit, or a permitted ADU that now produces income. A successor trustee has to be told who manages it, who collects the rent and who carries the costs. A general clause about real property does not answer any of that.
Heirs, or property, outside California
Adult children in another state, a parcel still held elsewhere, or a spouse who is not a United States citizen. Each one changes what the plan has to say, and out-of-state real property can trigger a second probate in that state on its own.
Does This Sound Familiar?
If any of these keep you up at night, you’re not alone, and every one has a clear solution.
A fee charged on the full value
California’s statutory probate fees are calculated on the gross value of the estate. On a San Jose home, the mortgage does not reduce them.
Twelve to eighteen months downtown
Without a funded trust, a Santa Clara County estate is administered through the probate department in downtown San Jose, commonly a year or more.
A trust that was never funded
The documents were signed. The grant deed was never changed. The house goes through court anyway.
How We Build Your Plan
- Revocable living trusts that avoid probate
- Wills, powers of attorney & advance healthcare directives
- Guardianship nominations for minor children
- Advanced & tax-aware planning for larger estates
What a California Estate Plan Actually Includes
An estate plan is the set of documents that decides who manages your money and your medical care if you cannot, and who receives your property after you die. In California a will alone does not avoid probate. Assets held in a properly funded living trust pass outside the court process; assets left out of it generally do not.
Most families we meet in San Jose have two of the following five documents. The gap is almost always in the ones that work while you are still alive.
Swipe for more
A living trust, and the funding that makes it work
The trust holds what you put into it, which lets a successor trustee step in without a court process for those assets, and keeps the details private. Signing is the first half of the job. Retitling the house and the accounts into the trust is the half that does the work, and it is the half most often left unfinished.
A pour-over will
It catches anything that never made it into the trust and directs it there. It is a safety net rather than the plan itself. Anything the will has to catch still goes through the probate process before it lands, which is why funding matters more than the will does.
A durable power of attorney for finances
California publishes a statutory form at Probate Code section 4401. It names who can pay the mortgage, deal with the bank, and sign for you if you cannot. Without one, the fallback is a court-supervised conservatorship, which is a proceeding rather than a form.
An advance health care directive
The Health Care Decisions Law publishes the form at Probate Code section 4701. It names your medical decision-maker and records your wishes, so the hospital is not guessing and your family is not arguing. Pair it with a HIPAA authorisation so the people you named can actually be told anything.
Beneficiary designations, which quietly outrank your will
Retirement accounts and life insurance pass to whoever is named on the form. Probate Code section 5000 confirms a nonprobate transfer is not invalid merely because it was not executed like a will. A form from a previous marriage keeps working in the current one, so these are worth reading rather than assuming.
What happens if you do nothing
California decides for you. Probate Code section 6401 gives your surviving spouse your half of the community property, then divides your separate property: half to your spouse if you have one child, a third if you have more than one. Most couples assume the spouse simply receives everything. The code does not say that.
How the design meeting works
We start with what you own, how it is titled, and who depends on you, then map which documents your situation actually needs. Families in San Jose, Santa Clara County and the wider Bay Area come to us with very different asset pictures, and the right plan for a renter with young children is not the right plan for a homeowner with a business.
Frequently Asked Questions
General information about California law, not legal advice for your situation.
Does a will avoid probate in California?
No. A will directs the probate court; it does not bypass it. Assets that pass under a will generally go through the court process. What avoids probate is holding assets in a funded living trust, or having a valid beneficiary designation, or fitting a small-estate procedure.
Do I need a living trust if I own a home in California?
For most Bay Area homeowners a trust is the document that does the heavy lifting, because the home is the asset that would otherwise drive a probate. Whether it is right for you depends on how the property is titled, what else you own, and who you want to manage it if you cannot.
What happens if I die without a will in California?
Probate Code section 6401 applies. Your spouse receives your one-half of the community property. Your separate property is divided: one-half to your spouse if you have one child, one-third if you have more than one child. A court applies that formula regardless of what anyone believes you wanted.
What is the difference between a will and a living trust?
A will speaks only after death and works through the court. A living trust works during your life as well: if you become unable to manage your affairs, your successor trustee can act on the trust’s assets without a court proceeding. That living-benefit gap is the reason most California plans are built around a trust.
What is a power of attorney and why do I need one?
A durable power of attorney names someone to handle financial matters if you cannot. California publishes a statutory form at Probate Code section 4401. Without one, your family’s route to paying your bills is a court-supervised conservatorship.
Who makes medical decisions for me if I cannot?
Whoever you name in an advance health care directive, the form for which is published at Probate Code section 4701. If nobody is named, the decision falls to whoever the hospital and the law identify, which may not be the person you would have chosen.
How often should I review my estate plan?
Reread it whenever a name or an asset changes: a move, a marriage or divorce, a birth, a death, a new property, a new business, or a refinance. Property tax rules for inherited homes also changed with Proposition 19 in 2021, so plans drafted before then are worth checking against current rules.
Do beneficiary designations override my will?
Yes, for the accounts they cover. Retirement accounts and life insurance pay whoever is on the form. Probate Code section 5000 confirms these nonprobate transfers are valid even though they are not executed like a will, so the form controls regardless of what your will says.
Where would a San Jose probate actually be heard?
San Jose is in Santa Clara County, so a probate for a San Jose resident is heard by the Santa Clara County Superior Court’s probate department in downtown San Jose. That is the court we already appear in, and our office at 100 Century Center Ct. is a few minutes from it. The point of a funded living trust is to keep the assets it holds out of that process altogether.
How does Proposition 19 affect a San Jose home I want to leave my children?
Proposition 19 narrowed the parent-child exclusion from property-tax reassessment. Since February 2021, in most cases a child has to make the home their principal residence for the exclusion to apply, and the amount excluded is capped. On a San Jose home held since the 1970s or 1980s the difference between the assessed value and the market value can be large, so whether your children actually intend to live there is one of the first things we ask.
We own a rental or an ADU in San Jose. Does that change the plan?
Yes, usually more than people expect. An income-producing unit has to be identified by name so a successor trustee knows who manages it, collects the rent and pays the costs while the estate is being handled. It also affects how the property should be titled and whether it belongs in the same trust as the residence. We look at the deed and the current use before recommending anything.
Some of our family lives outside California. Does that complicate things?
It can. Real property held in another state may require a separate ancillary probate in that state even when everything in California is handled by a trust, which is one reason out-of-state property is usually worth transferring into the trust. Where a spouse is not a United States citizen, the unlimited marital deduction does not apply automatically and the plan has to account for that. Neither is unusual in San Jose; both just need to be raised while planning rather than afterwards.
Do You Need Estate Planning Help?
Answer 3 quick questions. No email required to see your result.
1. Do you own a home or real estate in California?
2. Is your only document a will, or nothing at all?
3. Do you have minor children or dependents?
You'd Benefit From an Estate Plan
Based on your answers, a living-trust-based plan would protect your family from probate and put your wishes firmly in control.
Trusted by San Jose Families
“He got my trust and will done. He was very patient in explaining, very knowledgeable. I highly recommend him.”
“Fantastic, knowledgeable and very professional in establishing our trust. They explained everything thoroughly.”
“They spent the time explaining every component and answering our questions, giving us peace of mind for the future care of our child.”
“Clients for over 30 years. As always, every service was performed professionally and accurately.”
Client testimonials describe individual experiences. Every matter is different, and these statements are not a guarantee, warranty, or prediction of the outcome of your case.
Why Bay Area Families Choose Us
Specialist-Led
H. Rey Gervacio is a Certified Specialist in Estate Planning, Trust and Probate Law, The State Bar of California Board of Legal Specialization.
No Surprises
Clear, upfront pricing. You know exactly what to expect before we begin.
San Jose Roots
Serving San Jose, Santa Clara County & the greater Bay Area with personal service.
Most San Jose plans start the same way: with what you own, how it is titled, and who depends on you. The documents come after that, not before.
Let’s Talk Before It Becomes Harder to Fix.
Start with a Design Meeting. We’ll listen, explain your options in plain English, and map the right path forward.
Trust Law Legacy Group, APC · 100 Century Center Ct., Ste. 620, San Jose, CA 95112 · (408) 945-3950. Attorney advertising. This page is general information only, is not legal advice, and does not create an attorney-client relationship. Every situation is unique. Please consult an attorney about your specific circumstances.
Related San Jose estate planning services
Families comparing estate planning options may also need living trusts, wills, asset protection, or the California Family Protection Checklist. For next steps, request a design meeting.
Areas we serve: San Jose · Palo Alto · Santa Clara, and families throughout Santa Clara County and the greater Bay Area.
Worth reading before your design meeting
Clients arrive best prepared when they have thought about whether their plan still matches their current finances and who they would want making decisions if they could not.
Also useful: how often an estate plan needs revisiting, what changes after a marriage in California, and a short mid-year check-up you can run yourself. You can also see what other San Jose families have said about working with us.
What this looks like in a real file
Reading about a process is not the same as seeing one. Our de-identified case studies walk through real estate planning matters from this office, including a seven-figure IRA in a second marriage and a corporate trustee whose onboarding terms had to be renegotiated before the family signed.
Put a number on the probate risk
Planning decisions get easier with a figure attached. The California probate fee calculator applies the statutory schedule to your estate value, counting real property at full appraised value.
The plan California writes for you
Everyone already has an estate plan: the one in the Probate Code. See who would inherit if nothing else were in place.