If a loved one has recently died, you may be suddenly hearing legal terms like estate plan, trust, and probate for the very first time. For those unfamiliar with these terms, understanding how the California probate system works and how it’s different from a trust can be hard to understand. Thankfully, a knowledgeable probate attorney can help you fully understand the differences between probate vs. trust administration in California.

What Is Probate?

Probate is a court process that takes place after a person dies to settle their estate. Under California probate laws, a judge from the San Diego County Superior Court reviews the deceased person’s will to verify it is valid and helps oversee the transfer of assets to the named beneficiaries.

Probate is also used in cases where there are no wills or trusts, or if family members contest the will. Under California Probate Code Section 13100, estates totaling over $166,250 as of January 2025 that don’t have a trust require probate. The probate process also settles a deceased person’s debts and outstanding taxes, and grants creditors an opportunity to make claims against the estate.

What Is a Trust?

Approximately 55% of Americans never set any estate documents, including wills and trusts. A trust, sometimes known as a living trust, is a private, legal arrangement you set up as part of your estate plan. The ownership of your assets, such as real estate, bank accounts, investments, and personal property, is transferred to a third party or trustee. Trustees can be a bank or trust company, or a family member.

There are two main types of trusts: 

• A revocable living trust can be removed or changed by the grantor at any time during their lifetime.
• An irrevocable trust can’t be changed by anyone once it’s written and signed.

Through a trust, you can dictate exactly how you’d like your assets to be managed and distributed when you pass on. Your trustee takes care of the specifications in your trust, carrying them out properly. In many instances, under California’s trust administration laws, both types of trusts avoid the probate process.

Probate Process vs. Trust Administration

The legal process of estates can be confusing, and the differences between the probate process and trust administration are no different. Some of the main differences between probate vs. trust administration in California include:

• Court involvement. The probate process takes place in court, while trust administration is generally out of court.
• Privacy. Trusts are private, while probate is made a public record.
• Control. Through a trust, you hold on to management of your assets and name exactly who you’d like to distribute your assets upon your death, while the probate process keeps full control over your assets and appoints an executor for you.
• Access to Assets. In most cases, a trust provides immediate access to assets for beneficiaries, while assets are frozen during the probate process.
• Debt payment. Any outstanding debts or taxes are paid through the probate process, while trustees are expected to handle the payment of debts and taxes on their own.
• Cost. Trusts normally only require a one-time setup fee, whereas the probate process can result in costly fees.
• Time length. Assets in a trust are normally distributed within a few weeks or months, while the probate process can take anywhere from six months to a few years.

While both the probate process and trust administration provide a way for a deceased person’s assets to be distributed, having a trust in place offers several benefits when compared to the probate process and generally makes the process easier on your family during an emotional and stressful time.

FAQs

Q: Does Anything in a Trust Have to Go Through Probate in California?

A: Not all inclusions in a trust go through probate in California. Having a properly established trust normally avoids the probate process in California. However, any assets that are not properly titled or funded in the trust may have to go through probate. An estate and probate attorney can help to properly set up your trust and make certain that all your assets are fully titled.

Q: How Much Does It Cost to Create a Living Trust in San Diego County?

A: The cost to create a living trust in San Diego County depends on how many assets you have and the complexity of your estate. Upon your initial consultation, your estate planning and probate attorney will be able to provide you with a cost estimate for your personalized living trust.

Q: Do I Need a Lawyer to Create a Trust or Handle Probate in California?

A: While you don’t legally need to have a lawyer to set up a trust or hire a probate lawyer in California, it is highly recommended. Failure to file the proper paperwork or make errors can leave you and your family open to longer and more costly process times. It could also lead to complications in leaving your assets to your beneficiaries as you would like. Consulting an estate and probate attorney can help pursue a successful outcome.

Q: How Long Do Family Members Have to Contest the Validity of a Trust?

A: Under California Probate Code Section 16061.8, family members have up to 120 days from the date of notice to contest the validity of a trust. A trust might be contested if a family member believes the deceased person was coerced to name certain beneficiaries in the trust, signatures were forged, or if the person was not mentally capable of understanding the actions of creating their trust.

Hire a Probate Lawyer in California

Whenever possible, we highly recommend taking the time to establish a living trust, as it can make the process of asset distribution much easier when you pass on.

However, if you find yourself facing probate, Paul V.L. Campo Attorney at Law is here to help. For more than 40 years, Attorney Campo has worked with San Diego County residents through both trust administration and the probate process.

With our knowledge of California’s probate laws and trust administration laws, we provide the counsel and confidence you deserve to make an informed decision. Contact our team today to find out how our knowledge and experience can help you.