Will vs. Living Trust: Which Do You Need?

Nearly every adult needs a will, which names an executor and, for parents, a guardian. A revocable living trust is worth adding when avoiding probate, keeping your estate private or planning for incapacity justifies the setup cost and the work of moving your assets into it. Plenty of people with modest estates do fine with a will alone.

This article is general legal information, not legal advice. Laws vary by state and situation, and reading it does not create an attorney-client relationship. For advice about your case, talk to a licensed attorney.

Key takeaways

• A will covers only property that doesn't pass by beneficiary form, joint ownership or a trust.
• In California, probating a $600,000 estate means at least $15,000 each for the executor and the executor's lawyer, with no deduction for the mortgage.
• A living trust avoids probate only for property retitled into it.
• Minnesota, Michigan, California, Florida and Texas let a parent name a guardian for a child in a signed document other than a will.
• A trust can hold a child's inheritance past 18 and put someone other than the guardian in charge of it.

Will vs. living trust on probate, privacy and incapacity

	Will	Revocable living trust	Rule
Probate	Required, unless a small-estate procedure fits	Not needed for property titled in the trust	Cal. Prob. Code 13100, 17209
Fees set by law	4% of the first $100,000, 3% of the next $100,000 and 2% of the next $800,000, each to the executor and the lawyer	No statutory rate; the trustee gets what the trust sets or reasonable pay	Cal. Prob. Code 10800, 10810, 15681
Timeline	Inventory due 4 months after letters; final distribution petition or status report within a year	No court schedule; the trustee notifies beneficiaries and heirs within 60 days of the death	Cal. Prob. Code 8800, 12200, 16061.7
Privacy	The original goes to the court clerk within 30 days, and a notice runs in a newspaper	Not filed in court; beneficiaries and heirs can request a copy	Cal. Prob. Code 8200, 16061.7
Incapacity	No effect until death; your family may need a conservatorship	The successor trustee can manage trust property under its terms	Cal. Prob. Code 1801
Guardian for children	Yes	No; several states accept a separate signed form	Table below
Contest deadline	120 days after the will is admitted to probate	120 days after the trustee's notice or, if you get a copy of the terms within those 120 days, 60 days after that, whichever is later	Cal. Prob. Code 8270, 16061.8

The table uses California's rules; your state's numbers will differ. California treats a trust as revocable unless it says otherwise (Probate Code section 15400), and the Uniform Trust Code does the same for trusts signed after a state adopts it (section 602). Irrevocable trusts, used mostly for tax and Medicaid planning, are covered in Revocable vs. Irrevocable Trust.

What probate costs on a $600,000 California estate

Picture a divorced father in Riverside whose will leaves everything to his two adult daughters. He owns a rental duplex appraised at $450,000, with $250,000 left on the mortgage, and a $150,000 brokerage account in his name. (The numbers are invented.) Because the duplex isn't his home, California's petition for a primary residence worth up to $750,000 doesn't apply (Probate Code section 13151), and the estate is far over the $208,850 small-estate limit for deaths on or after April 1, 2025. His executor has to open a full probate case.

Fees are figured on the inventory's appraised value plus receipts and sale gains, less sale losses, "without reference to encumbrances" (sections 10800(b) and 10810(b)). The mortgage doesn't shrink the base, rent collected during the case adds to it, and the figures below are a floor.

Slice of the $600,000	Rate	Executor (section 10800)	Executor's lawyer (section 10810)
First $100,000	4%	$4,000	$4,000
Next $100,000	3%	$3,000	$3,000
Remaining $400,000	2%	$8,000	$8,000
Total		$15,000	$15,000

That's at least $30,000 together: 5% of the appraised value, or about 8.6% of the $350,000 in actual equity. Those cover ordinary services; the state's self-help site says a lawyer's fee may be higher in a hard case. Other costs come on top, including a court filing fee that is typically $435, newspaper publication and a probate referee's appraisal.

The inventory is due four months after the court issues letters (section 8800). Creditors have until four months after letters or 60 days after they're mailed notice, whichever is later (section 9100). Within a year (18 months if a federal estate tax return is required), the executor must petition for final distribution or report on the case's status (section 12200). California's courts say formal probate typically takes 9 to 18 months.

What the trust changes

With the duplex and the account titled in a living trust, his successor trustee would need no petition and no letters, and no statute would set a percentage fee; California intends trust administration to run "free of judicial intervention" (section 17209). It still costs something. The trustee is entitled to the pay the trust sets or, if it's silent, reasonable compensation (section 15681), and a lawyer who helps bills by agreement.

Florida's schedule is only presumed reasonable, and a lawyer using it must tell the executor in writing that no statutory fee is mandatory and the fee is negotiable. It's based on the inventory value of the probate assets plus income the estate earns during administration: $3,000 on the first $100,000 and 3% of the next $900,000, or $18,000 on $600,000 before any income (section 733.6171).

## Naming a guardian without a will

A will is the usual place to name a guardian for your children, but it isn't the only one. The Uniform Probate Code's model rule allows an appointment "by will or other signed writing" (section 5-202), and each state below accepts a separate document.

State	Separate document allowed?	Signing and filing rules	Statute
Minnesota	Yes, or a standby guardian designation	Signed the same way as a health care directive; the guardian files an acceptance within 30 days after it takes effect	Minn. Stat. 524.5-202
Michigan	Yes	Signed by the parent and attested by at least two witnesses	Mich. Comp. Laws 700.5202
California	Yes	Any signed writing, which can be worded to take effect only on your death or incapacity; generally needs the other parent's agreement unless that parent has died or can't consent	Cal. Prob. Code 1500, 1502
Florida	Yes, a preneed guardian declaration	Signed before two witnesses present together, identifies each child, and filed with the clerk of court	Fla. Stat. 744.3046
Texas	Yes, for a surviving parent	Signed and either entirely handwritten or witnessed by two people 14 or older who aren't named as guardians	Tex. Est. Code 1104.053, 1104.152

None of these overrides a living parent; the model code says an appointment doesn't supersede either parent's rights (section 5-202(g)). A filed Florida declaration creates a rebuttable presumption in its favor. A Texas court must appoint the person you named unless that person is disqualified, has died, refuses or wouldn't serve the children's best interests, and a California judge gives the nomination "due weight." In Michigan, after both parents have died or been found legally incapacitated (or the surviving parent has no parental rights), the appointment takes effect once the guardian files an acceptance with the court. Other states differ, so check your state's guardianship statute first.

What a trust can do for your children that a guardianship can't

A guardian raises your children. Managing what they inherit is a separate job. In California, money a child inherits outright may need a court-appointed guardian of the estate, who must account to the court a year after appointment and at least every two years after that (Probate Code section 2620), and the guardianship ends at 18 (section 1600).

A trust lets you set the terms instead. You choose the trustee, who can be a sibling who's careful with money while your best friend raises the kids. You choose the age, or stages, at which each child receives the money, and what the trustee may pay for until then.

## When a will alone is enough

A will may be all you need if your retirement accounts, life insurance and bank accounts name a beneficiary or a joint owner with survivorship rights, and what's left in your name fits your state's small-estate procedure. It can also be enough for young parents with few assets who mainly need to name a guardian and an executor.

In California, for deaths on or after April 1, 2025, the people who inherit can collect personal property with an affidavit after 40 days, without a court case, if the estate is worth $208,850 or less (Probate Code section 13100). A main home worth up to $750,000 can pass by court petition instead of full probate (section 13151), up from $184,500 for deaths from April 2022 through March 2025. Both use gross value, so the mortgage isn't subtracted. The $208,850 test also leaves out trust property, joint tenancy property and assets paid to a named beneficiary.

The Probate Checker compares an estate's probate value and real estate with the current limits for California, Florida, Illinois, New York and Texas.

Even a short will beats none, since without one your state's intestacy law picks your heirs; What Happens If You Die Without a Will shows the shares in four states.

Moving your property into the trust

A trust holds only what you put in it. California recognizes a trust created by declaring that you hold property as trustee or by transferring it to a trustee (Probate Code section 15200), and retitling each asset removes doubt about what the trust owns. Whatever is still in your name at death may need probate or a small-estate procedure, and a pour-over will sends it to the trust only after that.

• Sign and record a deed to yourself as trustee. In California, that transfer isn't a change in ownership for property tax purposes (Revenue and Taxation Code section 62(d)).
• Ask each bank and brokerage to retitle your accounts in the trust's name.
• Check the beneficiary forms on retirement accounts and life insurance, which pass to whoever the form names, outside both the will and the trust.
• Repeat the step for anything you buy, open or inherit later.

In the Riverside example, those two retitlings would have kept all $600,000 out of probate.

When an estate planning lawyer is worth the fee

Advice is worth paying for when:

• your children's other parent might object to your choice of guardian;
• you own real estate in more than one state, or rental property;
• a beneficiary gets SSI or Medicaid, or may need to;
• your probate estate would be well over your state's small-estate limit;
• you signed a trust years ago and aren't sure what's titled in it.

Ask for a flat-fee quote that says whether it covers preparing and recording the deed to your home. Our directory lists estate planning lawyers near you by city, so you can compare two or three quotes.

Frequently asked questions

Can a will override a living trust?

In California, only if the trust allows it: Probate Code section 15401 permits revocation by the trust's own method or by a signed writing, "other than a will," delivered to the trustee. The Uniform Trust Code is looser. Unless the trust makes its method exclusive, a later will that expressly refers to the trust, or specifically leaves property the trust would have passed, can revoke or amend it (section 602).

Does a living trust protect your assets from creditors?

No. Under the Uniform Trust Code, a revocable trust's property is subject to your creditors' claims while you're alive (section 505). After your death it can be reached for your debts, funeral costs and estate expenses if your probate estate can't cover them. Even an irrevocable trust you create for yourself can be reached up to the most the trustee could pay to you or for your benefit.

Can you be the trustee of your own living trust?

Yes. California recognizes a trust created by an owner declaring that they hold their own property as trustee (Probate Code section 15200(a)), so you can be your own trustee and keep managing your property. While the trust is revocable, the Uniform Trust Code says the trustee's duties are owed only to you (section 603).

Can a married couple share one living trust?

Yes. Under the Uniform Trust Code, either spouse alone can revoke a joint trust as to community property, but amending it takes both; for other property, each spouse can revoke or amend the share they contributed, and the trustee must promptly tell the other (section 602(b)). California likewise lets each settlor revoke their own contribution, subject to a community property rule in Family Code section 761 (Probate Code section 15401(b)).