Probate vs. Living Trust

Most people facing this question are not choosing a plan. Someone has died, and an adult child, a surviving spouse or another relative is holding a stack of papers, trying to work out whether there was a trust, whether the house is in it, and what "going through probate" will mean for the family in the months ahead. Often several siblings are asking the same questions at once. This guide lays the two paths side by side so the family can see which one applies to what was left behind.

Quick Comparison: Probate and Living Trusts Side by Side

The table below is a summary. Each row is explained in the sections that follow. Probate in California is governed by the California Probate Code, and living trusts are part of California trust law, which sits in the same code.

What Probate Is in California

California probate is the court process for passing on property that was in the decedent's name alone and has no other way to transfer. The decedent is the person who died. Their estate is everything they legally owned, as the California Courts guide to property after someone dies explains, and the probate division of the superior court handles these cases.

Under Probate Code section 8000, any interested person may start a probate case at any time after the death by petitioning the court to set the date and place of death and to appoint a personal representative, admit the will to probate, or both. The personal representative is the umbrella term for the person who runs the estate. An executor is the person named in a will to do that job. An administrator is the person the court appoints when there is no will or the named executor cannot serve. The court's authority is shown in a document called letters: letters testamentary for an executor, letters of administration for an administrator.

A will does not avoid probate. It is a set of instructions the court follows, and the courts' guide says an estate may need to go through probate even if the person had a will.

Probate is generally needed when solely owned property is worth more than the limits for California's simplified procedures. Those limits are adjusted periodically, and the California Courts publish the current figures. Whether a given estate crosses that line is the subject of a separate question, whether an estate needs probate.

What a Living Trust Is in California

A revocable living trust is a legal arrangement a person sets up during life to hold title to their property. Probate Code section 15200 lists ways a trust may be created, including a declaration by the owner that the owner holds the property as trustee, which is how many living trusts begin.

A few terms carry the whole subject:

• Settlor (also called the grantor): the person who created the trust.
• Trustee: the person who manages the trust property. While alive, the settlor usually serves as trustee and keeps full control.
• Successor trustee: the person named to take over when the settlor dies or can no longer serve.
• Beneficiary: a person the trust names to receive property.

"Revocable" means the settlor can change or end the trust while alive and competent. At death it generally becomes irrevocable, and the successor trustee settles it under the trust's terms without court supervision.

The trust's reach is limited to what it holds, a point covered in the section on assets a trust does not cover below. This page covers revocable living trusts, the type most often used in California to keep property out of probate, and only what happens after a death; creating or funding a trust is estate planning, a different subject.

Court Involvement, Privacy, and the Public Record

Probate runs through a court case. The petition, the will that is lodged with the court, the inventory of assets, creditor matters and the final account are filed with the Superior Court, and a court file is generally open to public view. In practical terms, anyone curious, including an estranged relative or a creditor, can generally look at what the estate held and where it went.

A trust administration usually happens outside the courthouse. No court filing is needed for a straightforward distribution, so the trust's terms and asset values are generally not made public.

Private does not mean silent. Probate Code section 16061.7 requires the successor trustee to serve a written notification when a revocable trust becomes irrevocable because of the settlor's death, on each beneficiary and each heir of the deceased settlor, within 60 days of the death, or 60 days after learning of a person entitled to notice, if that person was not known at the death. Each recipient may ask for a complete copy of the trust's terms. The notification must also warn that a beneficiary may not bring an action to contest the trust more than 120 days after it is served, or 60 days after a copy of the trust's terms is delivered during that 120-day period, whichever is later (section 16061.7(h)). Creditors also keep rights in a trust administration, and the successor trustee generally deals with known creditors; an attorney can say which creditor procedures apply to a particular trust.

Timeline: How Long Each Path Takes

Court scheduling is the main reason probate tends to run longer than trust administration. Each major step, from the petition and published notice to the inventory, the creditor period, any report to the court and the final petition, depends on the court calendar and advance notice to others.

Several of those steps carry their own periods. Under Probate Code section 8800, the personal representative files an inventory and appraisal within four months after letters are first issued, and the court may allow more time that is reasonable for the case. The California Courts overview of formal probate says courts usually require a report a year after the personal representative is appointed, and that the court will give more time if it is needed. The creditor period works differently from these filing deadlines: it does not begin at the death but runs after the personal representative gives formal notice to creditors, and the length of that period is set by the Probate Code rather than by the court calendar.

A straightforward trust administration has no hearings to wait for, which removes that scheduling dependency. The successor trustee's own obligations, such as the 60-day notice, still set some of the pace.

A dispute changes both timelines. A contested will, a challenge to a trust or claims of trustee misconduct are a different subject, handled by an attorney who litigates trust and probate cases.

Cost Structure: What Drives the Expense in Each Path

Probate fees for ordinary services are set by statute. Probate Code section 10800 sets the personal representative's compensation as a percentage of the value of the estate accounted for, "Four percent on the first one hundred thousand dollars ($100,000)," then three percent on the next $100,000, two percent on the next $800,000, and lower rates above that. Value is figured "without reference to encumbrances," so a mortgage does not reduce it. The courts' overview says fees may be paid from the estate to the personal representative and, if there is one, the personal representative's attorney; Probate Code section 10810 sets the attorney's fee for ordinary services on the same schedule.

Other probate costs fall into categories: court filing fees, newspaper publication of notice, and the fee of an appraiser such as a California probate referee. The courts' overview says administration costs "are often well over $1,000.00 and can be much more."

A trust avoids probate fees for the property it holds. Its own costs come earlier, when it is created and funded. Settling it is not free either: a successor trustee may hire an attorney, and a larger or more complex estate may need an accountant or appraiser. How the two compare for a particular estate depends on its size and complexity and on whether anything is contested; a probate or estate planning attorney can estimate it.

What a Living Trust Does Not Cover: Assets That Still Go Through Probate

This is where many families are surprised, and it is the single rule that decides which path each asset takes. A trust controls only what was actually put into it: property titled in the trust's name, or accounts that name the trust as beneficiary. A house, a brokerage account or a car still titled in the decedent's name alone at death is generally subject to probate, whatever the trust document says.

Some assets pass outside both probate and the trust. An account with a named beneficiary, such as life insurance, an IRA, a 401(k) or a payable-on-death bank account, goes to that beneficiary. Property held in joint tenancy passes to the surviving owner; the California Courts inventory guide describes joint tenancy as property where, "If one dies, the property passes to the other." These and other routes are set out among property that transfers outside probate.

Many trusts come with a pour-over will, a will that directs any property left outside the trust into it at death. A pour-over will is a safety net, not a shortcut: those assets generally still go through probate, or a simplified procedure if they qualify, before they reach the trust.

The result is that a family can face a partial probate even when a trust exists. Sorting each asset by how it was titled, using deeds from the County Recorder and account statements, shows what needs court and what does not.

When Probate Typically Fits the Situation

Probate tends to be the path in a few recognizable situations. The clearest is a decedent who left property in their name alone, worth more than the simplified-procedure limits, with no trust holding it.

It is also the path when there was a will but no trust. The will is admitted to probate and the court supervises how the property is distributed under it.

Smaller estates may qualify for California's simplified procedures instead: the affidavit for collection or transfer of personal property, the petition to determine succession to the decedent's primary residence, the affidavit for real property of small value, and the spousal or domestic partner property petition. Eligibility depends on the type of asset, its value, the date of death and how title was held. The personal property affidavit, for example, under Probate Code section 13100 generally requires that 40 days have passed since the death and that the estate fall under the value limit, which the California Courts page on simple transfer processes publishes for each date of death. The wider picture is in estate settlement without full probate.

Probate is not always the worse or costlier path. For some estates it is simply the one the law provides.

When a Living Trust Typically Fits the Situation

A trust administration tends to be the path when the decedent created a trust and funded it during life, so that the assets in question are already held by the trust. In that case the family works with the successor trustee, not a court-appointed personal representative, and the steps follow the trust's terms and California trust law, as described in estate settlement with a trust.

Real property is a common reason a trust exists. Keeping a California house out of probate is one of the most frequent purposes people give for creating one.

A trust can also matter before death: if the settlor becomes unable to manage things, the successor trustee can step in. That is a planning feature rather than part of settling an estate, but it explains why some families find a trustee already acting when the death occurs.

All of this describes situations, not a choice. For a family that is still deciding whether an existing plan is adequate or which structure to set up for themselves, that question belongs with an estate planning attorney.