The short and skinny: if you own a house in California, you almost certainly want a living trust, and the reason is arithmetic, not paranoia. California sets probate fees by statute, figures them on the gross value of what you own, and doesn’t subtract the mortgage. On a $1 million estate, the attorney’s fee is $23,000 and the executor’s fee is another $23,000. That’s before anyone disagrees about anything.
A trust avoids that, but only if it actually holds the house. More on that below, because it’s where most plans quietly fail.
This is general information, not legal or tax advice, and it’s written for people whose property is in California.
What happens if you die without a trust?
Your estate goes through probate: a court supervises gathering what you owned, paying your debts, and handing out what’s left under your will (or under the intestacy rules if you didn’t leave one).
Not every estate has to go through it. California lets smaller estates skip the full process:
- Under $208,850. For deaths on or after April 1, 2025, assets up to that amount can pass by a simple declaration instead of a court case (Probate Code §13100). The figure is adjusted every three years.
- A primary residence up to $750,000. Since April 1, 2025, a family home worth up to that amount can pass through a shorter court petition (Probate Code §13151). It’s simpler than probate, but it’s still a court filing.
Notice what those thresholds mean in coastal Los Angeles or Orange County. $208,850 doesn’t cover a condo. $750,000 doesn’t cover most single-family homes. If you own a house here, assume your estate is going to probate unless you’ve arranged otherwise.
What does probate actually cost?
Here’s the part most people have never seen. Probate Code §10810 sets the attorney’s fee for ordinary services as a percentage of the estate:
- 4% of the first $100,000
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9,000,000
The executor (the “personal representative”) is entitled to the same amount under §10800. And the base is the gross value of the estate “without reference to encumbrances,” which means the mortgage doesn’t count against it.
Worked on real numbers, for each of the attorney and the executor:
- $800,000 estate: $19,000 each, $38,000 total
- $1,000,000 estate: $23,000 each, $46,000 total
- $1,500,000 estate: $28,000 each, $56,000 total
A $1 million house with a $600,000 mortgage is still a $1 million estate for this purpose.
Two honest caveats. First, when the executor is a family member, they often waive their fee, so the real number may be closer to half. The attorney’s fee doesn’t go away. Second, those are fees for ordinary services. Selling the house, litigating a claim, or other “extraordinary” work can add court-approved fees on top (§10811).
How long does probate take?
Longer than people expect. Creditors get four months from the date the court first issues letters to the executor to file claims (§9100), so an estate generally can’t close before that. In practice, getting letters, inventorying, appraising, waiting out claims, and getting a court order to distribute often takes a year or more.
It’s also public. The probate file is a court record, so what you owned and who got it is open to anyone who looks.
What does a living trust do differently?
A revocable living trust holds your property while you’re alive (you’re the trustee, so nothing changes day to day), then a successor trustee you’ve named takes over at your death and distributes it under the trust’s terms. No court supervision, no statutory percentage fee, no public file.
It isn’t zero process. Your successor trustee still has real duties: notifying beneficiaries and heirs within 60 days (Probate Code §16061.7), accounting, paying debts and taxes, and following the trust’s terms. But it’s administration, not litigation, and it isn’t priced as a percentage of everything you own.
Moving your house into your own revocable trust also doesn’t trigger a property-tax reassessment in California, because it isn’t a change in ownership (Revenue and Taxation Code §62(d)).
Why do so many trusts fail?
Because nobody moved the house into them.
A trust only controls what it owns. If you sign a beautiful trust and the house is still titled in your own name, the house is outside the trust, and it goes through probate anyway. The “pour-over will” that comes with most trusts doesn’t fix this. It moves leftover assets into the trust through probate, which is the thing you were trying to avoid.
Sometimes a court can be persuaded to treat a house as trust property after the fact (a “Heggstad petition,” after Estate of Heggstad (1993) 16 Cal.App.4th 943), but that’s a court proceeding too, with its own cost and uncertainty.
The fix is boring and essential: a deed transferring the house from you to yourself as trustee, recorded with the county. A foundational estate plan that doesn’t include that deed is unfinished.
So what’s in a foundational estate plan?
Four documents and one deed:
- A revocable living trust, the core of the plan
- A pour-over will, the safety net for anything left outside the trust
- A durable power of attorney for finances, so someone can act for you if you can’t
- An advance health care directive, for medical decisions
- The deed that puts your house in the trust, recorded
Retirement accounts and life insurance usually stay out of the trust and pass by beneficiary designation instead, so part of the work is checking that those designations say what you think they say.
When is a will alone honestly enough?
Sometimes it is. If you rent, your accounts pass by beneficiary designation (401(k)s, IRAs, life insurance, payable-on-death bank accounts), and what’s left is under the $208,850 threshold, a will plus clean beneficiary designations may be all you need. California also allows a revocable transfer-on-death deed for real estate (Probate Code §5600 and following), which has its own formalities and limits and fits some situations better than others.
The question isn’t “trust or will” in the abstract. It’s what you own, how it’s titled, and what probate would cost your family if nothing changed.
The takeaway
If you own a California home, run the numbers above on your own house. The statutory fee on your estate is usually many times what a properly funded trust costs to set up, and the trust spares your family the court process and the year of waiting.
I draft foundational estate plans for California families on a flat fee, from $4,000, and the deed that funds the trust is part of the plan, not an extra. The details are on the tax and estate planning page.
This is general information, not legal or tax advice, and reading it doesn’t create an attorney-client relationship. Figures are current as of October 2026; the small-estate thresholds adjust every three years.