Why Do I Need a Trust if I Have a Will?

We often hear the same questions from numerous clients: “Why do I need a trust if I have a will? Isn’t a will enough?” The short answer is usually “no.”

In some states, a will is sufficient to protect a person’s assets from probate and estate taxes. However, in California, this is not the case for most people. Here in California, if a person dies with only a will, his or her will must still be probated, which means that the will is submitted to the court and the assets are subjected to a very long and expensive process. In fact, this probate process is the same process used for persons who die without any will or trust. There are some exceptions to probating a person’s will, but they are few and far between.

Instead, most people need a revocable living trust. A revocable living trust is somewhat more complex than a will; for instance, once a revocable living trust is created, most of the creator’s (also known as the “settlor” or “trustor”) assets must be re-titled in the name of the trust. However, a revocable living trust protects the person’s assets from certain taxes, directs the trustee of the trust to distribute the assets in accordance with the settlor’s expressed wishes, and, unlike a will, avoids the often expensive and always time-consuming process of probate.

When a revocable living trust is created, other accompanying documents are also created, including a “pour-over” will. The pour-over will allows assets left out of a person’s revocable living trust upon his or her death to be “poured” into the trust. We highly recommend that the settlor of a revocable living trust transfer all of his or her assets (with some exception) into his or her trust, but the “pour-over” will serves as a back-up plan.

[Disclaimer: The materials contained on this website have been authored or gathered by the Law Offices of Stuart D. Zimring, and are intended for informational purposes only. It is not intended to be and is not considered to be legal advice. Transmission is not intended to create and receipt does not establish an attorney-client relationship.]