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Is a Living Trust a substitute for a Will?

County Law Center > Is a Living Trust a substitute for a Will?

A trust and a will are two completely different documents, but they provide most of the same elements. Three of the main differences between a will and a trust is a will is the only document that can provide guardianship for minor children, a trust involves more paper work and greater expense than a will and a trust eliminates the probate process when it is time to distribute assets to the beneficiaries.

A minor difference between a trust and a will is a will becomes a public document as soon as it is filed in probate court and a trust is completely confidential, unless the trust is contested, then it becomes a public document. The confidentiality of the trust helps prevent an individual from making a claim against the trust.

Under California Law, an estate, outlined in a will, is not subject to probate if the value of the estate is less than $100,000 and there is no real property, such as a home, involved. A will with an estate more than $100,000 in value or has real property attached to it is subject to the probate process.

For an estate that does not meet the financial bench marks of probate court does not have to be transferred to a trust with the expense that goes with it. However, if minor children are involved, a will is a must whether a trust is set up or not.

If you have a trust, you should also have a health care directive or health care proxy, a pour over will and a power of attorney for financial purposes.

If you just have trust and not a will, anything not included in the trust will be treated under California State Probate Law as intestate. Those elements will be subject to the laws of probate and the court will decide how the assets will be distributed, according to family succession. Non family members will not be considered for asset distribution, no matter how they were to the deceased or if it was intended for them to receive any assets.

It is important to have a will in addition to a trust as there are most likely possessions that are not allowed to be included in a trust, such as a motor vehicle, and through a will, those allowed assets not noted in the trust will be poured over to the trust.

For will and trust information and to determine what is best to suit your needs and desires, contact Marc Duxbury at County Law Center located in Carlsbad, California telephone 760-438-5291. Marc Duxbury is a recognized expert in estate planning.