What’s the Difference Between a Will and a Trust?
Before we talk about the differences between wills and trusts, we need to go over what probate is.
Probate is the court proceeding that distributes a deceased person’s assets to those that are entitled to them. In California, probate is time-consuming, costly, complicated, and non-confidential. Since court proceedings are public, the general public can look up who received what from probate proceedings. Essentially, probate is not a process that you want your grieving family to endure.
What is a Will?
A will is a legal document that says how you would like your assets distributed after you pass away. I recommend having your will drafted by an attorney.
Handwritten wills, also known as “holographic wills,” are wills that are written by the creator (often in pen) without any legal assistance or witness. Although handwritten wills are allowed, they can cause complications after you pass away because they are often missing critical information and family members may try to dispute them. Assets include real property, money, accounts, and other property such as furniture and vehicles.
A will also appoints who will be in charge of overseeing the distribution of your assets. That person is called the “executor.”
As of 2026 in the state of California, if all your property is worth more than $208,850, then your executor will have to go through Probate Court, and the Court will use your will as a guide for how to properly distribute your assets.
What is a Trust?
Trusts are a tool by which you can ensure your assets are distributed without going through probate. The trust establishes who the successor trustee is and designates the beneficiaries. The successor trustee will step in when the creator of the trust (the “trustor”) is incapacitated (unable to act for themselves) and/or when the trustor passes away.
Trusts are especially important if you own a home in California because owning a home will expose your family to probate if the home is not in a trust. When you create a trust, you inhabit all three roles:
Trustor: Because you created the trust.
Trustee: Because you manage everything in the trust (your home, money, possessions, etc.).
Beneficiary: Because you benefit from everything in the trust.
If you become incapacitated, your successor trustee will step in to manage everything on your behalf. As long as you are alive, they are to follow the instructions that you have in your trust. When creating instructions for your successor trustee, it’s best to think about who is going to enforce those instructions and whether they will be enforceable.
Personal Story: How My Grandmother Did This
For instance, my grandmother left explicit instructions for my father to take her to visit friends even if she had no memory of said friends. When my father would try to follow these instructions once he stepped in as successor trustee, my grandmother would fight him tooth and nail, refusing to leave her home. The only person that would enforce this instruction was my grandmother, but she didn’t have the capacity to enforce it, nor did she want to when the time came. It would have been better for her and my father if she omitted that instruction entirely. It’s best to talk to an attorney when deciding whether you’d like to leave any specific instructions like this in your trust.
Whether You Need a Will or a Trust, Speak with an Experienced Attorney
In summary, probate in California is a complex, costly, and public process that you want your grieving family to avoid.
A will can be a great tool to avoid probate if your combined property is worth less than $208,850.
Trusts are the best tool for avoiding probate in California, especially if you own a home.
Schedule a meeting with Brown Legacy Law below to discuss creating a trust and protecting your legacy.