In California’s complex legal system, many people mistakenly believe that creating a will is enough to keep their family out of the probate court. This assumption can lead to significant complications, delays, and costs for loved ones. If you are looking for clear guidance on how to avoid probate, it is essential to understand that both a will and a trust are required in most cases to truly bypass probate and protect assets.

Understanding Why a Will Alone Requires Probate

A will is a critical element of estate planning. It allows the person writing the document to name a personal representative, designate beneficiaries, and specify guardianship for minor children. However, it does not help you avoid probate. A will is a set of instructions that must be submitted to the probate court, where a court process is initiated.

Under state law, the court must oversee the validation of the will, the settlement of debts and taxes, the appraisal of personal property, real estate property, and the final transfer of ownership to heirs. This process can take years in California, with most probates lasting between 18 and 36 months. Even a basic estate may not be resolved for at least nine months.

Probate Creates Public Records and Significant Expenses

Probate is not only time-consuming but also public. The full contents of the deceased person’s estate, including financial accounts, bank accounts, and savings accounts, become part of the public record. This often results in unsolicited contact from marketers, realtors, and scam artists.

Additionally, the probate process can be expensive. California calculates statutory probate fees based on the gross value of the estate. If your real estate is worth $1 million, for example, fees are calculated on the full amount, even if there is a $700,000 loan attached. These fees are paid to both the attorney and the personal representative and are not negotiable.

Using a Revocable Living Trust to Avoid Probate

A revocable living trust is the most effective way to avoid probate in California. It is a legal document that creates a trust account and allows you to transfer property such as real estate, personal property, bank accounts, and retirement accounts into the trust during your lifetime. You maintain full control as trustee and name a successor trustee to take over after your incapacity or death.

When assets are held in a revocable trust, they do not go through probate. The successor trustee can immediately begin administering the estate without involving the court. This provides faster access to assets, reduces legal costs, and maintains privacy.

What About Incapacity?

Unlike a will, a revocable trust operates while you are still alive. If you become incapacitated, your successor trustee can step in and manage the trust account, ensuring that bills are paid and your family is supported. This bypasses the need for a court-appointed conservator and avoids additional delays in critical financial decisions.

This feature benefits everyone, not just people with a complex estate. Whether you own one property or several, a trust ensures continuity of management in the face of unexpected life circumstances.

Common Missteps: Joint Tenancy and Transfer on Death Accounts

People sometimes rely on joint tenancy, joint ownership, or transfer on death TOD designations to avoid probate. These tools can work in limited situations, but they do not replace a revocable trust.

With joint tenancy, for example, if one owner dies, the remaining owner automatically inherits the property. However, this can lead to problems. The surviving co owner could face liability from the other’s creditors, and there are often tax considerations that go unaddressed.

Transfer on death accounts, while helpful for some savings accounts or retirement accounts, only apply to specific financial instruments. They do not help with real estate property, business interests, or other personal property. They also provide no control over distribution beyond naming a beneficiary designation.

Why You Still Need a Will

Even when you have a living trust, you still need a will. This is typically a pour-over will that ensures any assets not formally transferred into the trust are captured at death and distributed according to your wishes. However, these assets will still require probate, which is why proper titling and regular updates to your trust document are crucial.

Supplementing Your Estate Plan

An effective estate plan may also include:

• A charitable remainder trust or charitable lead trust for those who want to contribute to a cause and receive tax benefits.
• A spendthrift trust to protect heirs from poor personal finance decisions or from creditors.
• An irrevocable trust for long-term tax considerations and asset protection.

These options are helpful for individuals with a large estate, those planning for generational transfers, or anyone with a complicated family situation.

Estate Planning Applies to Everyone

Many assume estate planning is only for the wealthy or for real estate investors. This is not true. Anyone who owns real estate, maintains bank accounts, or wants to make sure their family is protected needs an estate plan.

Without one, your loved ones could face unnecessary expenses, delays, and public exposure. Even modest estates can exceed the certain value threshold that triggers probate under California state law. Whether you are part of a married couple, a single parent, or planning for your minor children, creating a revocable trust offers peace of mind and protection.

Take Action Now to Avoid Probate

If you want to bypass probate, waiting until something goes wrong is not an option. Begin by consulting with a qualified estate planning professional. Make sure your legal document is current and that your assets held are correctly titled in the name of your revocable living trust.

Also review your beneficiary designations on financial accounts, savings accounts, and retirement accounts. If your plan is outdated or incomplete, your assets may still require probate, even with good intentions in place.

Concluding Thoughts

At HCS Equity, we understand how estate planning decisions—especially those involving wills and trusts—impact real estate financing. We frequently work with trustees, heirs, and professionals managing estates to provide funding solutions that align with the goals of the trust and the timing of probate or trust administration. While we do not draft estate plans, we support clients managing the complexities of real estate tied to revocable trusts, probate, inheritance, and other structures related to wills and trusts.

If you are managing property in a trust or estate and need financing, HCS Equity can help you structure a solution that aligns with California’s legal framework. Contact us today to learn more.