Probate, trusts, taxes and divorce
Trusts and Probate, Made Simple
What probate is, what a living trust does, when a trust helps, and the words you will hear, in the simplest words we could find.
What is probate, in plain words?
Short answer: probate is how a court helps hand out a person's things after they die, when they did not set things up another way.
This is general information, not legal or tax advice. An estate planning attorney advises on your plan, and a CPA advises on taxes.
Think of probate like a referee. When someone dies, somebody has to pay the last bills and give the house, the money and everything else to the right people. If nothing was set up to skip the court, a judge watches over that job.
- The judge picks one person to do the work. That person is called the personal representative, or the executor when there is a will.
- The court gives that person a paper called Letters. Letters are like a permission slip. Without them, no one can sell the house.
- Probate takes time. The California Courts Self-Help Guide says formal probate typically takes 9 to 18 months, and sometimes longer.
- Probate costs money. State law sets the fees for the executor and the attorney as a percentage of the estate. Our probate timeline and cost guide shows the math.
What is a living trust?
Short answer: a living trust is like a labeled box that holds your things. You stay the boss of the box for as long as you live.
- You make it with an attorney. Then you put things in the box. For a house, that means signing a new deed that puts the house in the trust's name.
- You are the boss. The boss is called the trustee. You can still live in your house, sell it, refinance it or change your mind. Most living trusts can be changed or canceled while you are alive, which is why they are called revocable.
- You pick a backup boss. That person is the successor trustee. It is often a grown child or someone you trust. They take over when you die, or if you can no longer handle things and your trust says they can.
- You decide who gets what. The people who get things from the trust are your beneficiaries.
How does a trust help?
Short answer: for anything inside the box, your backup boss can step in without a court case.
- It can skip probate. A house that is really in the trust usually passes on without a probate case. No judge, no hearing and no court calendar.
- It can be faster. Your family is not waiting on the court to say yes.
- It can cost less at the end. The probate fee schedule does not apply to things held in the trust. A trust still has costs, like the attorney who sets it up and help for your backup boss later.
- It keeps things more private. Probate papers are filed with the court, and court files are generally open to the public. A trust usually is not filed with a court.
- It helps if you get sick. If you can no longer manage things, your backup boss can take care of what is in the trust, if your trust says they can. Most do. Without a plan, a family may have to ask a court to put someone in charge, which is called a conservatorship. A financial power of attorney helps with this too, so ask your attorney about both.
When do you need a trust?
Short answer: no one is required to have one. It is worth a talk with an estate planning attorney if any of these sound like you.
- You own a home in California in your own name.
- You want your family to be able to skip court.
- You have a blended family, or you want to leave things to people in a certain way or at a certain time.
- You own a home or land in more than one state. Without a plan, that can mean a court case in each state.
- Someone you love has special needs, or would need help managing money.
- You want a plan in place in case you get sick.
Sometimes a simpler tool is enough, especially for a small estate or a home going to a spouse. See other ways a house can skip probate below.
Doesn't a will do the same thing?
Short answer: no. A will says who gets what, but a will by itself still goes through probate.
A will is like a letter to the judge. The judge still runs the probate case and follows the letter. A trust is the box that skips the judge for what is inside it.
Many people have both. A short will, often called a pour-over will, catches anything that was never put in the trust and sends it there. Anything it catches may still need probate first, which is why putting things in the trust matters.
What happens if there is no trust and no will?
Short answer: California law decides who gets your things, and the house usually goes through probate.
The state has a set list of who inherits, starting with a spouse or registered domestic partner and children. The court picks someone to handle it. The result may not be what you would have chosen, so it is worth writing down what you want.
What is the biggest trust mistake?
Short answer: making a trust and never putting the house in it.
A trust only controls what is inside the box. If the deed still has the person's own name on it, the house may still need probate, even though a trust exists.
This also happens after a refinance, when the house is moved out of the trust for the loan and no one moves it back.
How to check:
- Find the most recent deed to the house.
- Look for a trustee's name followed by "as trustee" of the trust.
- Make sure the trust's name on the deed matches the trust papers exactly.
If it does not match, call your attorney. We can also order a property profile from a title company so you can see how the home is held.
Other ways a house can skip probate
Short answer: a trust is one way. There are a few others, and your attorney or title officer can tell you which one applies.
- Passing to a husband or wife. A surviving spouse can use a shorter court request, called a spousal property petition, instead of full probate.
- Joint tenancy. When two people own a home as joint tenants and one dies, the other usually keeps the whole house. Adding a child to a deed can bring tax and control problems, so talk to your attorney first.
- A transfer on death deed. This deed names who gets your house when you die. You sign it in front of a notary and record it with the county within 60 days of signing, while you are alive. It works for homes with up to four units. California's law for it is set to end on January 1, 2032, unless lawmakers extend it. Deeds signed before then stay good.
- A small estate. California has dollar limits for skipping full probate. For deaths on or after April 1, 2025, a primary home worth up to $750,000 may use a shorter court petition. Our probate and trust page lists every limit.
Does a trust lower my taxes?
Short answer: a simple living trust usually does not lower taxes on its own.
- While you are alive, you file your income taxes the same way you always have.
- When the house passes on, its tax starting point is generally reset to what it was worth on the date of death. This is called a step-up in basis, and it can mean far less tax if the home is sold. It works the same whether the house is in a revocable living trust or in the person's own name. See our guide to stepped-up basis.
- Property tax rules for passing a home to a child, under Prop 19, are the same with or without a trust. See Prop 19 in Sacramento.
Your CPA should run the numbers for your family.
The words you will hear
- Trustee: the boss of the trust.
- Successor trustee: the backup boss who takes over.
- Beneficiary: someone who gets something from the trust.
- Executor, or personal representative: the person the court puts in charge in probate.
- Heir: a family member the law says can inherit.
- Letters: the court's permission slip for the executor.
- Probate referee: a person the court picks to put a price on the house in probate.
- Certification of trust: a short paper, signed by the trustee, that proves the trustee can sell, so escrow does not need the whole trust. Title companies often want it notarized.
What can I do this week?
- Find your deed and check how your home is held.
- Tell your backup boss where your trust papers are, if you have a trust.
- Look at your trust again every few years, and after a big change like a death, a marriage, a divorce or a move.
- If you inherited a house, start with our free Inherited Home Checklist.
- Selling a house in probate or a trust? See how probate and trust sales work, step by step, or how a successor trustee sells a house.
Where does Maggie fit in?
Maggie B. Hopkins is a Certified Probate & Trust Specialist, a licensed real estate broker and a mortgage broker. She is not an attorney. Her job is the house: what it is worth, getting it ready, and the sale, working alongside your attorney and your CPA.
If you are not sure where to start, call. We will tell you what comes next on the house side, and who to talk to for the rest.
Frequently Asked Questions
Do I need a trust if I have a will?
A will alone still goes through probate. A living trust lets the things inside it skip probate. Many people have both, with a short pour-over will as a backup. An estate planning attorney can tell you what fits your family.
Does a house in a living trust go through probate?
Usually not, as long as the house was actually deeded into the trust. If the deed is still in the person's own name, the house may need probate even though a trust exists.
Can I still sell or refinance my house if it is in my living trust?
Yes. While you are alive and in charge of your trust, you can live in, sell or refinance the home. If a refinance moves the house out of the trust, make sure it gets moved back in afterward.
How long does probate take in California?
The California Courts Self-Help Guide says formal probate typically takes 9 to 18 months, and it can take longer. A house held in a living trust usually skips that wait.
Does a living trust save on taxes?
A simple revocable living trust usually does not lower taxes on its own. The step-up in basis and the Prop 19 rules work the same with or without one. Your CPA should run the numbers for your family.
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