How to create a living trust in California

Your estate plan is one of the most important decisions you’ll make in life. A living trust is a legal document that allows individuals to maintain control over their assets during their lifetime, amend the trust’s terms, and ensure a seamless transition upon their death. Navigating the nuances of setting up a trust in our state can be daunting. With changes in laws, tax implications, and the need to ensure a smooth transition for your assets, it’s vital to understand how to create a living trust in California, along with the benefits of doing so. The following information will help you to understand California trusts and help you to make informed decisions for your family’s future.


Your Estate Plan and Creating a California Living Trust

Revocable vs Irrevocable Living Trusts

As part of the process of learning how to create a living trust in California, you’ll need to understand the difference between “revocable” and “irrevocable” trusts.  There are two primary types of living trusts in California: One can be revoked, and the other usually cannot. Each serves unique purposes, possesses distinct advantages, and is governed by specific regulations. Here are the basic tenants of each:

  1. A Revocable Living Trust is not necessarily permanent:

Flexibility is Key: The primary allure of this trust is its adaptability. As the name suggests, “revocable” means that the grantor (the person who creates the document) can alter or dissolve the trust at any point during their lifetime. This feature proves beneficial when life situations change, such as new family members or the acquisition of significant assets.

Control Over Assets: Even after transferring assets into the trust, the grantor maintains control. They can buy, sell, or utilize these assets as they would if they hadn’t placed them in the trust. The trust is essentially a legal document that specifies how assets should be managed and distributed upon the grantor’s passing or incapacitation.

Privacy and Probate Avoidance: One of the most compelling reasons individuals opt for this trust is to sidestep the probate process. Not only does this expedite the distribution of assets after death, but it also ensures that the estate’s details remain private.

  1. An Irrevocable Living Trust is permanent:

Permanent Decisions: Unlike its revocable counterpart, once you establish this trust and transfer assets into it, the terms are set in stone. You can’t easily change or revoke the trust without the consent of everyone named in the trust.

Estate and Tax Benefits: This trust type can prove advantageous for minimizing estate taxes. Since the assets transferred to this trust are permanently removed from the grantor’s estate, they are not subject to estate taxes upon the grantor’s death. Moreover, these assets are also shielded from creditors, providing an additional layer of protection.

Medicaid Eligibility: For individuals looking ahead to potential long-term care needs, creating this document can be a strategic move. Assets in such a trust aren’t counted towards Medicaid eligibility, potentially making it easier for the grantor to qualify for Medicaid assistance.

Special Needs Planning: For families with special needs members, an irrevocable Special Needs Trust can ensure that the beneficiary continues to receive essential governmental benefits while also benefiting from the assets to enhance their quality of life.

Ultimately, the choice between revocable and irrevocable trusts hinges on individual goals and circumstances. While the former offers unparalleled flexibility and control, the latter provides robust tax benefits and asset protection. Consulting with experts, such as those at Shoup Legal, can provide clarity and guide you toward making an informed decision tailored to your unique situation.

Create a trust in California


When/How Does a Revocable Living Trust Become Irrevocable?

A revocable trust, as the name suggests, is characterized by its inherent flexibility. It’s designed to allow the grantor (the individual who creates the trust) to make amendments, modifications, or even completely revoke it during their lifetime. However, there are specific circumstances under which this trust transitions into an irrevocable one, making it immutable. Let’s delve into the details.

  1. Upon the Grantor’s Death

The most common circumstance that transforms the former trust into an irrevocable one is the death of the grantor. Once the grantor passes away, they obviously can’t make changes to the trust, so it automatically becomes irrevocable. This transformation ensures that the terms of the trust, as set forth by the grantor, are adhered to, and the assets within the trust are distributed or managed exactly as the grantor intended.

  1. The Death of One Co-Grantors in a Joint Trust

In cases where a trust has been established jointly by two grantors (commonly spouses), the trust might be partially irrevocable upon the death of one grantor. This means that the portions of the trust pertaining to the deceased grantor’s assets often become irrevocable, while the surviving grantor can still make changes to their portion of the trust. The specific mechanics can vary based on the terms set out in the document and state-specific regulations.

  1. Explicit Transitioning

While less common, there might be situations where the grantor intentionally changes their trust to an irrevocable one. This might be done for tax planning reasons, asset protection, or other strategic considerations. However, such a transition requires a formal procedure, typically involving the drafting of an amendment to the trust or a complete restatement, and possibly notification to the beneficiaries.

  1. Mental Incapacity of the Grantor

If a grantor becomes mentally incapacitated, the trust can functionally operate as if it were irrevocable, especially if the document specifies this. In such scenarios, the grantor no longer has the capacity to make decisions or changes, and the successor trustee takes over the management of the trust based on its existing terms.



5 Critical Differences Between a Revocable Living Trust and a Will

Both trusts and wills are crucial estate planning tools designed to ensure that an individual’s assets are managed and distributed according to their wishes after their death. While they share some common objectives, they have different characteristics and functions. It is very important for families to understand these differences when creating their estate plan.

Probate Administration

Trust: One of the primary advantages of a trust is its ability to avoid probate—a court-supervised process of authenticating a will and overseeing the distribution of assets. Probate is essentially the court’s process of verifying the legality of a will and overseeing the appropriate distribution of assets. In California, this process can be time-consuming and costly, taking anywhere from several months to even years, depending on the complexity of the estate and potential disputes. Assets that go through probate can be frozen until the court finalizes its distribution, while assets held in a trust can be transferred to beneficiaries without going through the probate process, often resulting in a faster, less expensive, and more private distribution. Looking for assistance with a probate case? We are experienced probate attorneys in Temecula and throughout California.

Will: Assets solely owned by the deceased and transferred through a will must generally go through the probate process. This can be time-consuming, costly, and, since probate records are public, can compromise the privacy of the deceased and beneficiaries.

Control and Flexibility

Trust: While the grantor is alive and competent, they can often amend, modify, or revoke this trust, giving them considerable flexibility and control over the assets and terms of the trust.

Will: A will can be revised or replaced as many times as desired until the person’s death, providing flexibility during the individual’s lifetime.

Incapacity Planning

Trust: A significant benefit of a living trust is that it can include provisions for managing assets if the grantor becomes incapacitated. A successor trustee can step in to manage the assets within the trust, ensuring continuity and avoiding potential court intervention.

Will: A will does not provide for incapacity. If a person becomes incapacitated, a separate legal process, such as appointing a conservator or guardian, might be required to manage their affairs.

Asset Coverage

Trust: Only assets transferred into the trust are covered by the trust. Assets outside the trust are not governed by its terms.

Will: A will can encompass all assets owned by the individual at the time of their death, even if they are not specifically listed.

Effort, Cost, and Time Investment

Trust: Setting up a trust can require more initial effort and might be more expensive than drafting a will, as assets must be retitled in the name of the trust.

Will: Generally, creating a will is simpler and less expensive than setting up a trust. However, any savings might be offset by the costs and delays of the probate process after death.


Your Estate Plan and California Estate Taxes

Estate taxes, frequently referred to as “death taxes,” are imposed on a person’s assets following their demise, before these assets are handed over to the beneficiaries. For individuals with sizable estates, these taxes can significantly diminish the legacy they wish to pass on. Nonetheless, employing the right trust provides opportunities to possibly lessen or even bypass these tax burdens. Watch for an article in the coming weeks which will provide more details on how a living trust can reduce estate taxes.

Creating a living trust for family generations

How to Create a Living Trust in California:  The Process

Crafting a trust in the state of California, while intricate, can be streamlined into a clear step-by-step process. Shoup Legal, experienced Estate Planning attorneys in Temecula and Southern California, can guide you through this process. Here’s an in-depth look at the required steps:

1. Determine the Type of Trust You Need

Before initiating the process, you must decide whether you need a single or joint trust. If you’re married and want the trust to include assets of both spouses, a joint trust might be the way forward. On the other hand, if you’re single or if both spouses want distinct trusts, a single trust would be appropriate.

2. Selection of a Trustee

The trustee is a pivotal figure who manages the trust. While you can be your own trustee, ensuring smooth management, it’s wise to designate a successor trustee. This individual or institution will manage the trust’s assets if you become incapacitated or upon your passing.

3. Document Preparation

The central piece in creating a trust is the document itself, essentially the declaration of trust. This document outlines all the details: who the trustee is, how the assets should be managed, and the manner of distribution upon the grantor’s death. Engaging with a seasoned attorney, like those at Shoup Legal, is pivotal to ensure the document complies with California law and truly reflects your intentions.

4. Funding the Trust

Once your trust is established, it remains an empty vessel until you transfer your assets into it. This process, called “funding the trust,” involves re-titling your assets in the trust’s name. From real estate deeds to bank accounts and personal property, this step ensures your assets are indeed governed by the trust’s terms.

5. Regular Reviews and Updates

Learning how to create a living trust in California is only the beginning…  While a trust that can be revoked allows flexibility, it’s essential to periodically review and update it, especially after significant life events. This ensures that your trust remains aligned with your current wishes and circumstances.

In essence, while creating a trust can seem daunting, it’s a structured process. And with the right guidance, it offers an invaluable tool in your estate planning toolkit.

Additional Living Trust and Estate Planning FAQs

Why do I need a living trust?

What are the requirements for a revocable living trust in California?

How much does it cost to set up a living trust?

Should I create a living trust in California if I don't have a large estate?

What happens to the assets held in the trust?

Can I make changes to my trust?

How do I create a living trust in California?

Hopefully this article has helped you to understand how to create a living trust in California, but you will likely still have questions.  Contact our office and we’d be more than happy to schedule a consultation to discuss your family’s exact estate planning needs.  You can also click here to register for one of our FREE estate planning workshops in Southern California.  We’d love to see you there!