Trusts and Estates

Ca. Trs. & Estates Quarterly Volume 14, Issue 3, Fall 2008


By Jeremy B. Crickard, Esq.*


Avoid probate at all costs, or perhaps more accurately, avoid all costs of probate. This is the mantra of many California estate planners. The delays, court fees and costs of formal probate administration in California lend credence to this mantra. As a result, in recent decades, the prevalence of revocable trusts in California has grown considerably.

The use of a revocable trust, however, does not guarantee that a formal probate proceeding will not be needed. Rather, to realize the benefit of probate avoidance, a person must properly title all of his or her assets in the name of the trust, a process often referred to as "trust funding." As estate planners know, trust funding is rarely a clean or simple process, and the potential for improper or incomplete trust funding is significant. As a result, persons who have created a revocable trust often leave assets titled in their name individually at the time of their death. In such case the practitioner may be able to avoid a formal probate through the use of an affi-davit,1 petition to determine succession to real and personal property2 or a spousal property petition.3 Often, however, these alternatives are not available.

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