Estate planning is not exclusively for the wealthy or the elderly. Every California adult who owns property, has a bank account, or has children needs at minimum a will and ideally a revocable living trust. Without these documents, California intestate succession laws and the probate court system will determine what happens to your assets and who raises your children, and those outcomes frequently differ substantially from what you would have chosen if you had documented your wishes while alive.
What a Will Does and What It Cannot Do
A will is a legal document that specifies how you want your assets distributed after your death and names a guardian for any minor children. In California, a will must be signed by the testator and witnessed by two adults who are not beneficiaries under the will. It can also be handwritten and self-witnessed under specific rules for holographic wills, though holographic wills create additional opportunities for challenges and disputes.
What a will cannot do is avoid probate. Any asset that passes through your will is subject to the California probate process, which is a court-supervised procedure that validates the will, pays debts and taxes, and distributes remaining assets to beneficiaries. Probate in California typically takes 12 to 18 months and costs approximately 4 to 5 percent of the gross estate value in statutory attorney and executor fees, making it one of the most expensive probate systems in the country.
Why a Revocable Living Trust Is Often the Better Tool
A revocable living trust holds your assets during your lifetime and transfers them directly to your beneficiaries at death without probate court involvement. Because the trust owns the assets rather than you individually, there is nothing in your individual name to probate when you die. Your successor trustee administers the trust and distributes assets according to your instructions, privately and without court supervision, fees, or delays.
A common misconception is that having a will makes a trust unnecessary. Our article addressing whether you need both a will and an estate plan explains why most California adults benefit from having both documents. The trust handles the majority of assets that you transfer into it during your lifetime, while a pour-over will serves as a safety net for any assets you owned individually at death that were not transferred into the trust, directing those assets into the trust so they are distributed according to the trust terms rather than intestate succession.
What Happens Without a Plan
Dying without a will in California means your estate passes under the intestate succession statute, which distributes assets according to a fixed formula based on family relationships. Our overview of what happens if you die without a will explains how those distributions work and why they frequently do not reflect what the deceased would have chosen. Unmarried domestic partners receive nothing under intestate succession regardless of how long the relationship lasted. Stepchildren receive nothing even if you raised them as your own. Charitable gifts are impossible. Friends who were closer to you than family members receive nothing.
Beyond asset distribution, dying without estate planning documents also means a California court will appoint a guardian for your minor children without knowing your preferences. The court uses a best-interests standard and typically prefers family members over non-relatives, but the court will not know which family member you trusted most, which parenting philosophy aligns with yours, or which living situation you would have chosen for your children. Documenting these preferences in a will prevents the state from making these decisions without your input.
Getting Started
An estate plan does not need to be complicated to be effective. For most California adults, a basic estate plan includes a revocable living trust to avoid probate, a pour-over will to catch any assets not transferred to the trust, a durable power of attorney for finances so someone can manage your financial affairs if you become incapacitated, and an advance health care directive so your medical wishes are known if you cannot communicate them yourself.
These documents should be reviewed and updated after major life changes including marriage, divorce, the birth or adoption of children, significant changes in assets, moving to a different state, or changes in who you want to serve as trustee, executor, or guardian. An estate plan created when you were single and childless may not reflect your wishes after you marry and have children.
An estate planning attorney can draft a plan that reflects your specific assets, family structure, and wishes, ensuring your estate is distributed as you intended rather than according to a default statutory formula that had nothing to do with you or your values, and ensuring your children are raised by the people you trust most rather than whoever the probate court appoints.
Michael Avanesian, the founder and driving force behind Avian Law Group, is a passionate and dedicated attorney with a strong background in personal injury law. As a partner at JT Legal Group, Michael led the growth of the personal injury practice from a single employee to a team of over ninety professionals, securing over $2 billion in settlements for clients in just three years.
