Estate planning usually starts with a Last Will and Testament, a legal document that spells out how you want your assets to be distributed and other affairs handled after you die. A will is a good first step in estate planning, but it’s not necessarily the best option in every situation.

For California residents, trusts can be especially beneficial. In this article, we’ll discuss why you might want to consider setting up a trust or updating your existing trust if you haven’t looked at it in a while.

What is a Living Trust?

While there are many different kinds of trusts, a living trust is one of the most popular types for estate planning.

A living trust is a legal entity that distributes your property to people and organizations after you pass away. Once you establish a living trust, you fund it by putting your assets in the trust’s name. You can put all kinds of assets into a living trust, including real estate, investments, stock from closely held corporations, certificates of deposit (CDs), life insurance, personal property, collectibles, and more.

Living trusts may be revocable or irrevocable. Revocable trusts are more popular for estate planning, as they’re flexible and can be changed any time during your lifetime (as long as you are competent). Irrevocable trusts typically can’t be changed without a court order or approval of the trust’s beneficiaries.

Why is it Important to Have a Trust?

Revocable living trusts are particularly beneficial for California residents for two main reasons.

Probate Records are Open to the Public

Currently, probate is generally required for all estates in California valued at more than $184,500 unless all the assets are in a trust. (For deaths prior to April 1, 2022, the maximum value of an estate was $166,250.) There are a few exceptions. For example, property owned jointly automatically transfers to the surviving owner, and life insurance policies and retirement accounts go to the beneficiaries, as long as they are correctly designated.

Other assets must go through probate, including real estate, personal property, and bank and investment accounts. In California, anyone can view probate records, so setting up a trust can help you and your loved ones maintain privacy.

High Probate Costs

Probate attorney fees are set by statute in California, and they’re based on a percentage of the value of assets that go through probate.

Currently, those rates are:

• • 4% of the first $100,000
  • 3% of the next $100,000
  • 2% of the next $800,000
  • 1% of the next $9 million
  • .5% of the next $15 million

For value above $25 million, the court determines a “reasonable amount.”

California real estate is expensive so going through probate can be costly based on the value of a residence alone.

For example, say you own a home valued at $1,000,000—roughly the median home price in San Diego. Based on the value of your residence alone, your estate’s probate fees would be:

• • 4% x $100,000 = $4,000
  • 3% x $100,000 = $3,000
  • 2% x $800,000 = $16,000

The attorney’s statutory fee would be $23,000, even if they just file paperwork.

This fee applies even if the home is fully mortgaged since it’s based on the gross amount of probate assets.

Is it Time to Review Your Trust?

If you already have a trust but haven’t looked at it in a while, now is a good time to review it with your attorney.

Many life events can impact how you want to distribute your estate, so it’s essential to ensure your trust and other estate planning documents are up to date.

In general, we recommend reviewing your trust every three to five years or after any of the following life events:

• • Getting married or divorced
  • Having a child, a child reaching adulthood, or the birth of a grandchild
  • Inheriting assets
  • Starting, buying or selling a business
  • Retirement
  • Buying or selling real estate
  • Death of a spouse or child
  • Moving to a new state
  • Tax laws change

We also recommend working with an estate planning attorney to draft or revise a trust. Many clients think they can save money by using a trust form found on the internet, but estate planning is complex, and trusts are governed by state law. The short-term savings from a DIY approach aren’t worth the expensive problems it can create down the road.

If you’d like a referral to an estate planning attorney, would like us to review your trust documents for tax consequences, or need help with a trust tax return, reach out to a Hamilton Tharp advisor.