Do You Need a Will If You Have a Living Trust?

Creating a revocable living trust is an important part of estate planning for many California families. A living trust can help avoid probate, provide for the management of your property if you become incapacitated, and make it easier for your loved ones to receive trust assets after your death. But once you have a living trust, do you still need a will?

In most cases, yes. A living trust and a will serve different purposes, and having both can help create a more complete estate plan. At Georgia N. Kezios, we help individuals and families throughout Los Angeles, Orange and Riverside counties understand how these documents work together and make sure their estate plans are designed to address their individual circumstances, assets, and family needs.

What Does a Living Trust Do?

A revocable living trust is created during your lifetime and can hold assets such as real estate, bank accounts, investment accounts, and other property. As the creator of the trust, you can serve as the trustee while you are alive, which means you retain control over the assets in the trust.

You also name a successor trustee. If you become incapacitated, that person can step in and manage trust assets according to the terms of the trust. After your death, the successor trustee can generally distribute the trust property to your beneficiaries without putting those assets through probate.

Avoiding probate is one of the primary reasons California families establish revocable living trusts. Probate can take months or longer and involves court filings, notices, and other formal requirements. A properly funded trust can allow assets held by the trust to pass to beneficiaries outside the probate process.

However, a trust only controls property that is actually owned by or properly associated with the trust. That is where the will becomes important.

Why Do You Need a Will If You Have a Trust?

A will can serve as a safety net for assets that were not transferred to your living trust during your lifetime. This document is commonly called a pour-over will. The basic idea is straightforward. If you die owning an asset that should have been placed in your trust but was not, the pour-over will directs that asset into the trust after your death. The asset may still need to go through probate before it can be transferred, but the will helps ensure that the property ultimately follows the distribution plan established by your trust.

Without a will, property left outside the trust may instead be distributed under California’s intestate succession laws. That could produce an outcome you did not intend. For example, you might create a living trust that leaves your property to your spouse and then to your children. Years later, you purchase another asset but never transfer it to the trust. If you die without a will, that asset could be distributed according to California’s intestacy rules rather than the plan you carefully established in your trust.

Does a Will Avoid Probate?

No. This is one of the most important distinctions to understand. A will does not generally allow assets to bypass probate. In fact, a will is typically submitted to the probate court after someone dies. If a pour-over will is used to transfer assets into a living trust, those assets may have to pass through probate before the transfer can occur. The goal is therefore to properly fund the living trust during your lifetime whenever possible. The pour-over will is a backup, not a substitute for funding the trust. This is why creating a trust and then failing to transfer the appropriate assets into it can undermine one of the trust’s primary benefits.

A Will Can Name Guardians for Minor Children

For parents, this is another important reason to have a will even when they have a living trust. A will allows parents to nominate a guardian for their minor children in the event both parents die or are otherwise unable to care for the children. While a court ultimately makes the appointment, the parents’ wishes can provide important guidance to the court. A living trust does not serve the same function. While a trust can provide financial support and management of property for children, the will is typically the document used to nominate a guardian. For parents, this can make the will an essential part of an overall estate plan.

What Other Documents Do You Need?

A living trust and pour-over will address important issues after death, but a complete estate plan usually includes documents that address what happens while you are alive as well. An Advance Health Care Directive allows you to designate a healthcare agent who can make medical decisions for you if you cannot make or communicate those decisions yourself. It can also allow you to express your wishes concerning medical treatment and end-of-life care. Similarly, a Durable Power of Attorney for Assets allows you to designate someone to handle financial and property matters on your behalf if you become unable to do so. Depending on the circumstances, this can help your family avoid the need for a court-supervised conservatorship.

Together, these documents address different aspects of your estate plan. The trust manages trust property, the will provides a backup for assets outside the trust and can nominate guardians, and the advance directive and power of attorney address important decisions during your lifetime.

What Happens If You Do Not Have a Will?

If you have a living trust but no will, the trust can still control the assets properly transferred into it. However, assets left outside the trust may be subject to California’s intestate succession laws if they do not have another method of transferring ownership. That means state law, rather than your overall estate plan, may determine who inherits those assets. This can become particularly problematic when family circumstances are complicated. Blended families, children from previous relationships, unmarried partners, estranged relatives, or other circumstances can make intestate succession very different from what you intended. Having a pour-over will helps reduce this risk by providing instructions for property that was unintentionally left outside the trust.

What If I Already Have a Living Trust?

If you already have a living trust, it is worth reviewing your entire estate plan to make sure all of the pieces work together. Start by determining whether you have a valid pour-over will. Then review how your major assets are titled. Real estate and other property intended to be held by the trust generally need to be properly transferred into the trust. Retirement accounts and life insurance policies typically require careful review of beneficiary designations rather than simply being retitled in the trust.

It is also important to review your estate plan when major life events occur. Marriage, divorce, the birth of a child or grandchild, a significant change in assets, or the death of a beneficiary or successor trustee can all create reasons to update your documents.

A Will and Living Trust Work Together

A living trust is not a replacement for a will. For many California families, the two documents work together as part of a broader estate plan. The trust can provide the primary mechanism for managing and distributing assets, while the pour-over will provides a backup for property that remains outside the trust. The will can also nominate guardians for minor children. Other documents, such as an Advance Health Care Directive and Durable Power of Attorney for Assets, address incapacity and decisions that may need to be made while you are still alive. The goal is not simply to have as many legal documents as possible. The goal is to make sure the documents work together to accomplish what you actually want.

Talk With a California Estate Planning Attorney

If you have a living trust or are considering creating one, it is important to understand how a will fits into the overall plan. A properly drafted and funded trust can help avoid probate, but a pour-over will provides important protection for assets that may otherwise fall outside your estate plan.

If you would like to review your existing estate plan or discuss creating a living trust, contact Georgia N. Kezios. We can help you understand how your will, trust, advance directives, powers of attorney, and beneficiary designations can work together to protect your wishes and make things easier for your family.