What is a living trust in California?

A living trust is a legal arrangement you create during your lifetime to hold your assets. You typically serve as trustee while you are alive, then a successor trustee manages or distributes the assets if you become incapacitated or pass away, generally without court-supervised probate.

Do I still need a will if I have a trust?

Yes. Even with a living trust, most Californians should also have a pour-over will. It names a guardian for minor children and directs any assets you did not transfer into the trust to pass into it, so nothing in your estate is left unaddressed.

What assets should be transferred into a living trust?

Common assets to fund into a living trust include your home and other real estate, bank and investment accounts, and business interests. Retirement accounts and life insurance usually pass by beneficiary designation instead. Properly titling assets into the trust is what allows them to avoid probate.

Can a living trust help avoid probate?

Yes. Assets properly transferred into a revocable living trust generally pass to your beneficiaries without probate, because the trust, not you individually, holds legal title. This can save time and court costs and keeps the transfer private. Assets left outside the trust may still require probate.

Living Trust Attorney in San Jose, CA

Quick Answer

A living trust is a legal tool that can hold your assets during life and direct how they are managed or distributed after incapacity or death. For many California families, a properly drafted and funded trust can reduce probate risk and simplify administration.

Key Takeaways

A trust must be funded correctly to work as intended.
Revocable living trusts are commonly used by California homeowners to avoid probate.
Trust planning should coordinate with wills, powers of attorney, healthcare directives, and beneficiary designations.

Common Questions Answered on This Page

What is a living trust in California?
Do I still need a will if I have a trust?
What assets should be transferred into a living trust?
Can a living trust help avoid probate?

Service area: San Jose, Santa Clara County, Milpitas, Fremont, Sunnyvale, Santa Clara, Cupertino, Campbell, Los Gatos, and nearby Bay Area communities.

Next step: Talk with an estate planning attorney in San Jose about creating, reviewing, or funding your living trust.

What is a revocable living trust?

A revocable living trust can name who manages trust assets if you cannot act and who receives trust assets after death. It usually works with a pour-over will, financial power of attorney, and healthcare directive.

What does a living trust attorney do?

A living trust attorney drafts a revocable trust that holds your assets during life and names a successor trustee to manage and distribute them after death without court supervision. The attorney also prepares the deed that moves your California home into the trust, because an unfunded trust can still leave the house in probate.

What affects the cost of a living trust in California?

Cost depends on what the plan must do: the number of properties to retitle, children or beneficiaries needing protective sub-trusts, a business or out-of-state real estate, and tax planning. Compare it with probate, where California statute sets attorney fees at 4% of the first $100,000, 3% of the next $100,000, and 2% of the next $800,000.

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Providing Legal Guidance for Clients In Need of Estate Plans

If you’re considering making an estate plan to ensure your family will be financially set when you’re no longer here, it’s time to call San Jose attorneys for estate planning help. We can review your current circumstances and financial goals for the future to decide which estate planning tools would most benefit your family.

In many cases, you’ll find that including one or more trusts in your estate plan is recommended. If you’re curious about why that is and what type of trust would be right for your family, contact Trust Law Legacy Group, APC for answers. Our lawyers have assisted numerous clients with estate plans personalized for their unique situations, and we would be happy to do the same for you.

Call today to schedule a consultation with the caring lawyers at our San Jose law office.

Why Should You Consider Adding a Trust to Your Estate Plan?

When you begin the process of setting up an estate plan, you’ll find that you have access to several estate planning tools, one of which is a trust. When you set up a trust, you create a legal agreement that says who manages the assets and who receives them. With an irrevocable trust, you generally give up ownership of what you transfer. With a revocable living trust, you keep control and can change or revoke it during your life. A successor trustee you choose can step in if you cannot act, and after your death transfers the trust assets to your beneficiaries.

Trusts are nearly as popular as wills among estate planning options. However, wills and trusts serve different purposes, which is why there’s room for both in most estate plans. The point of a will is to clarify how you want your assets distributed to your family members when you pass away. This legal document can also appoint a guardian for your children and specify your preferences for your funeral and burial services. However, wills lack most of the benefits that trusts have.

The main benefits of trusts compared to wills and other estate planning tools include:

The ability to avoid probate, a lengthy legal process that can delay your beneficiaries from getting your assets after your death
More control over how your property is distributed, as you can choose from different types of trusts and leave specific instructions on when each beneficiary gets their assets
Privacy, since trust administration is not a matter of public record like probate is
Possible tax advantages with certain irrevocable trust structures, depending on how they are designed
Protection from creditors, depending on the type of trust you create

If you’re intrigued by these benefits of trusts, contact our San Jose law firm to speak with a caring lawyer about the estate planning process. We’ll work with you to ensure your plan includes the right tools for your situation, so call today to get started.

What Are the Different Types of Trusts?

Before you set up a trust, it’s best to get to know the types of trusts available to you, since each one has different advantages. Your San Jose trusts lawyer can guide you toward the one that’s suitable for you if you have questions about your options, but it helps to get an idea of what’s available first.

To start, know that every trust is considered either a living trust or a testamentary trust. This distinction refers to when it was created. Living trusts are set up during your lifetime, while testamentary trusts are created after you’ve passed away, according to the terms in your will.

Trusts are further divided into revocable and irrevocable trusts. Revocable trusts are living trusts that allow the person creating them, called the grantor, to serve as the trustee. This means if you make a revocable trust, you can remain in charge of it during your lifetime, so you can move assets in and out of it as desired and even revoke it at any time. Though you can serve as the trustee who manages the trust during your lifetime, you must also appoint a successor trustee who will take over this role when you pass away.

On the other hand, if you create an irrevocable trust, you cannot revoke it or make changes to it during your lifetime. Many families appoint a trustee other than themselves for tax and asset protection reasons, though California law does not require it. This type of trust allows less flexibility and control of your assets than a revocable trust does.

However, not being in control of the trust comes with some advantages. For instance, assets transferred to a properly structured irrevocable trust for your beneficiaries can be protected from your future creditors (California law does not protect trusts you create for your own benefit), offering asset protection. In addition, certain irrevocable trust structures may reduce estate or income taxes, but the result depends on the design, and many irrevocable trusts are taxed to the person who created them.

Common Specialty Trusts

Your lawyer will help you choose between an irrevocable and revocable trust based on your estate planning goals. They can then determine if a specialty trust would be right for you. Some of the most common specialty trusts include:

Special needs trust: This lets you set aside money for a disabled child or other family member so you can leave them considerable assets without causing them to surpass the income limits for government programs, such as Medi-Cal and SSI
Charitable trust: This lets you leave a specified amount of money to your favorite charity and transfer your remaining assets to your beneficiaries
Generation-skipping trust: Such a trust streamlines the process of transferring assets to your grandchildren while reducing your estate tax liability
Qualified personal residence trust: This irrevocable trust lets you transfer your primary home into the trust while living in it for a specified period of time, after which the home will transfer to your beneficiaries

These are some examples of common trusts that might benefit you. If you want to learn about additional options for unique situations, contact our San Jose law firm to speak to knowledgeable trust attorneys.

Disputes Over a Trust

Sometimes a trust ends up contested, or a trustee does not do what the law requires. Those matters are handled by our litigation team, and we cover the deadlines, the grounds, and the remedies in detail on our San Jose trust and estate litigation page.

How Can San Jose Trust Lawyers Assist You?

Whether you’re interested in estate planning assistance or need legal guidance on trust and probate litigation, our San Jose trust attorneys are here for you. We’ve spent years helping clients navigate legal disputes involving probate, estate planning, trustees, wills, and more. We can provide the legal advice you need to resolve any issue you are facing with an estate.

While our attorneys spend a lot of time helping clients prevent future family conflicts through estate planning services, our team is also well-versed in litigating cases in the courtroom if a dispute does arise. So, if you’re ready to learn creative solutions to some of the most common legal disputes involving estates, you can rely on the attorneys at Trust Law Legacy Group, APC, for guidance. If you want to learn more about how initiating an attorney/client relationship with us can benefit you and your family, get in touch with our team.

Related trust and estate planning help

Families creating or updating trusts may also need San Jose estate planning help, real estate trust planning, and trust administration guidance.

What a trust is avoiding

Assets held in a funded living trust generally pass outside probate entirely. The California probate fee calculator shows the statutory fees those assets would otherwise face.

What a trust replaces

Without a trust or a will, California’s intestate succession rules apply by default. See what those rules would do to a separate-property estate.

Working with a San Jose trust attorney

What a trust saves compared with probate

California sets probate fees by statute. On a $1,000,000 estate, the attorney’s statutory fee is $23,000 and the executor is entitled to the same amount, before court costs and appraisal fees (Probate Code sections 10800 and 10810). The fee is based on the gross value of the estate, so a San Jose home with a mortgage still counts at full value. A funded living trust avoids that process for the assets it holds.

Recording your home into the trust

For most Santa Clara County families the home is the largest asset, and it only avoids probate if the deed is actually in the trust’s name. That means a new deed recorded with the Santa Clara County Clerk-Recorder. We prepare and record it as part of the plan, and we check it again after any refinance, since lenders sometimes ask owners to take the home out of the trust. See how a refinance can pull a home out of your trust.

Property taxes and Proposition 19

Since 2021, a child who inherits a parent’s home keeps the parent’s property tax base only if the child moves in as a primary residence, and only up to a value limit. A trust does not change that rule, but it lets you plan around it. Our Prop 19 guide for San Jose families walks through the numbers.

When to update your trust

Review your trust after a marriage, divorce, birth, death, move, or a large change in what you own, and otherwise every three to five years. If a trustee has already taken over, our trust administration attorneys can guide the notices and accountings California requires.