Category: Probate
"Do I need a trust or a will?" is probably the most common question that estate planning attorneys hear. In this blog post, we will attempt to help you understand the answer to the question of when is an estate plan that includes a will, but no trust, enough to avoid probate?
In order for an estate to avoid probate, in general, an estate must meet the following two requirements:
First, If The Deceased Had a Primary Residence Property, It Must Be Valued at $750,000 or Lower
A recent change to the California Probate Code, which started in April 2025, means that if the deceased owned a residence, it might avoid probate if it meets specific criteria.
There are certain conditions that the residence needs to meet in order to avoid probate. Two of these requirements are that the residence is valued at $750,000 or less and that the property was the deceased's primary residence.
Second, Other Aggregate Probatable Assets Under the Gross Value of $184,500
Under the California Probate Code, if the aggregate amount of the deceased's gross probable assets exceeds the sum of $184,500, the estate will have to go through probate.
Let's break this down a little:
Aggregate Amount - meaning the value of all the deceased's probatable assets together.
Example:
If the deceased only owned a bank account with $160,000 or a car valued at $30,000. The deceased's estate, in both examples, will not be subject to probate since both assets separately are valued under $184,500. However, if the deceased's estate includes both the bank account and the car, the deceased's estate would be subject to probate since it is worth more than $184,500.
Gross Assets - This means the total value of the assets, regardless of how much of the asset the deceased has paid off.
Example:
If the deceased owned an expensive car worth $300,000 but still had a $200,000 car loan, the probate court still estimates the car's value, for probate purposes, at $300,000.
Personal Probatable Assets - Personal probatable assets are assets that are not placed in a trust or assets that do not have a listed beneficiary that will receive the asset upon the deceased's passing.
Examples:
(1) a house placed in a trust is not a probatable asset since the house is titled in the trust's name.
(2) The proceeds of a life insurance policy are not probatable assets if the policy will have a listed beneficiary to receive the proceeds upon the insured's passing.
Reasons Other Than The Avoidance of Probate to Have a Revocable Living Trust
Even if an estate is below the sums we listed above, and therefore not technically required to be probated, a will may still be insufficient to administer and distribute an individual's estate according to their wishes. Below are a few reasons that a revocable living trust may be a good choice even when probate is not an issue:
Incapacity: A revocable living trust not only allows for control after death but also during incapacity.
While a will only allows for instructions after a person passes away, a revocable living trust allows for planning for how the trust will administer assets to aid the trust creator throughout their life, including during a difficult period in which they may be incapacitated for various reasons.
Planning for Future Distributions - If someone wants to leave part of their estate to someone who is a minor or perhaps someone who is already receiving government benefits such as SSI, which requires more sophisticated planning, their best option is to create a revocable living trust. A revocable living trust can hold and administer assets before and after the trust creator passes and distributes the assets according to the trust creator's instructions and applicable laws.
Conclusion:
In certain circumstances, in order to avoid probate, a will may be enough.
However, even under circumstances in which a revocable living trust is not required to avoid probate, it probably would still be advisable to create one, as a trust has other benefits that a will does not offer.
Important - In this post, I gave a very concise explanation of a very complex issue. This post should be used for general knowledge and not for making a decision on what kind of estate plan is right for you. Be sure to consult an attorney regarding the estate plan you need for your unique circumstances.
If you already found yourself in a situation which now requires you to go through the probate process in California, you might want to check out our articles "How to Streamline California’s Nutorious Probate Process" and "Make Probate Less Scary By Understanding The Different Stages" and don't forget to contact us for a free consultion!