When most people hear about trusts and wills, they automatically think that’s something for the rich people to worry about.  What most people don’t know is that a solid trust or will provides a plan to make the least amount of disruption to you and your family. 

What’s the Difference?

A trust is an arrangement that is made allowing a “third party” to hold and direct the assets of the person who created the trust.  A trust takes effect after it is created.   In an estate plan, it is common to hear of a person or married couple creating a “living trust”.  What this means is that they are creating this arrangement while they are alive to “hold” their assets.  When the creator(s) pass away, the trust becomes “irrevocable” and a third party known as a Trustee will distribute the assets to the persons as directed by the trust (“beneficiaries”). A trust does not undergo probate court proceedings, which means loved ones can get access to the assets more efficiently.

A will is a document that is created by person specifically expressing their wishes on how their personal assets should be distributed after they pass away.  A will, on the other hand, takes effect after the person dies.  Typically, a will undergoes probate court proceedings which can last anywhere between 9 months to two years depending on what State you are in.

Does that Mean I Just Need a Trust?

Most of the time, an estate plan will have both a trust and a will component to make sure all the assets are taken care of and handed over to a person’s beneficiaries.

Can Someone Fight A Will?

In California, a testamentary document can be found invalid if a Court determines that a will or portion of a will was procured by undue influence.  (California Probate Code § 6104).  Even acts of kindness and attention may constitute undue influence if combined with other factors, for example, if there was a desire for monetary gain or fraud present.  (See Ruckes v. Magee (In re Estate of Rohde), (1958) 158 Cal. App. 2d 19, and Grinnan v. Niquette (In re Estate of Niquette) (1968) 264 Cal. App. 2d 976.)  In fact, California law prohibits certain persons from being beneficiaries of a will because of the possibility of undue influence on a creator of a will, and can even render a will void if such persons are listed as beneficiaries.

My Personal Assets are Small, So I Don’t Need a Trust Right?

In California, total assets, including real property (meaning your personal residence, if you own a home), that do not exceed $184,500.00 (as of April 2022) is considered a small estate.  A small estate does not have to undergo probate.  If your assets are more than $184,500.00 you should really consider having an trust and/or will put together.

How Do Trusts and Wills Fit in an Estate Plan?

Trust and Wills are two important parts of an estate plan but are not the only elements.  A good estate plan includes an Advanced Medical Directive and Durable Power of Attorney to allow trusted persons to support the creator of the documents when they are still alive but not able to communicate their wishes. 

If you want to learn more about Estate Plans for yourself, please set up a consultation with our firm by clicking the link below.

All articles presented on this website are considered general information should not be construed as legal advice. No attorney/client relationship is established or intended from simply reading this article.