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I Have A Revocable Living Trust, Isn't That Enough To Avoid Probate In California?


If a resident of California creates a revocable living trust (sometimes referred to as an “inter vivos” or “family” trust), that person has taken an important first step. However, without funding the trust, one of its most useful purposes, the avoidance of probate, will not be achieved by its creator.

Probate, as most people know, is the court supervised collection of assets, payment of debts, and distribution of what’s left to heirs of a decedent. Probate occurs in California when there is a will (a “testate” estate) or no will (an “intestate” estate). A revocable living trust can avoid probate, but only it if is funded by its creator.

One usually wants to avoid probate, with its attendant delay and fees (for example, a $300,000 estate will result in $9000.00 in statutory probate fees, substantially more than the cost of creating a revocable living trust).

However, to successfully avoid probate by using a trust, assets of the trust creator have to be transferred to the trust. If they have not been transferred before death, a probate will occur and, if there is no “pour-over” will, the probated assets won’t even end up in the trust.

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