California’s probate process is frequently perceived as slow, expensive, and public. When someone dies with real estate titled in their name alone — even if they have a will — the property typically cannot be transferred to heirs without going through the probate court.
This surprises many people. A will does not avoid probate. In fact, a will is essentially a set of instructions for the probate court to follow. Probate can take 9–18 months, often longer if there are disputes or complications. During that time, heirs may be unable to sell, refinance, or even access the home.
⚖️ Legal Aside: AB 2016 (2024 Update)
In an effort to simplify estate administration, California recently passed Assembly Bill 2016, which allows a primary residence to be transferred to heirs without full probate through a streamlined affidavit process. While this is a welcome change, it only applies in limited circumstances and does not provide the broader protections of a trust.
For example:
- AB 2016 only applies to a primary residence, not second homes, rentals, or vacation properties.
- It doesn’t help if you become incapacitated — a trust allows someone you choose to manage your affairs without court involvement.
- It may not protect against creditors, nor does it provide the same level of planning flexibility.
In most situations, especially where real estate is involved, a revocable living trust remains the better, more reliable solution.
Why a Trust Solves the Problem
Placing your home in a revocable living trust means that the property is no longer in your name — it’s held by the trust, which you control during your lifetime. When you pass away, your chosen successor trustee can transfer or manage the property without court supervision.
Key advantages of using a trust:
- No probate: Avoid court, legal fees, and months of delay.
- Privacy: Unlike probate, which is public, trusts keep your affairs confidential.
- Flexibility: Trusts allow for more complex planning — such as staggered distributions or asset protection for beneficiaries.
- Incapacity planning: If you become ill or disabled, your trustee can manage the property immediately — no conservatorship required.
While some homeowners use joint tenancy or transfer-on-death deeds as probate alternatives, these tools lack the depth, flexibility, and long-term protections of a trust.
What Happens If You Wait Too Long
Unfortunately, many families don’t learn about the importance of a trust until it’s too late. Here are a few common scenarios that highlight the risk:
- Incapacity without a trust means a court-supervised conservatorship may be required just to manage your home — even for simple repairs or bill payments.
- Death without a trust means your home is frozen in probate, even if you had a will. Your family may be unable to act when they need to most.
- Lost tax opportunities — for example, missing the deadline to claim a Prop 13 base-year value transfer or losing Prop 19 parent-child exclusions because the planning wasn’t done in time.
The bottom line? Planning early means fewer surprises and smoother transitions.
Beyond Avoiding Probate: Bonus Perks for Homeowners
A trust isn’t just about avoiding probate. For California homeowners, it can provide long-term strategic advantages:
- Property tax protection: A properly designed trust can help preserve your low property tax base — potentially saving your children thousands yearly under Proposition 13 and Proposition 19.
- Multigenerational planning: Keep the family home in the family, shield it from creditors, or ensure it stays available for minor children.
- Complex family needs: Trusts can handle blended families, remarriages, special needs beneficiaries, or spendthrift heirs in a way wills and deeds cannot.
Take the Next Step
Setting up a revocable trust is easier and more affordable than most people think — and far less stressful than putting your loved ones through probate.
If you’ve recently bought or sold a home, now is the perfect time to review your estate plan and ensure your real estate is protected. It’s a simple step that could save your family time, money, and heartache down the road.
If you’ve recently bought or sold a home in Kern County, attorney Jared R. Clemence can help you create or update your trust. Use the calendar below to book your no-risk appointment now.