Most parents know they should have something in writing in case they die. Then the plan stalls on one question: will vs trust, or both? Search it and you meet two camps. One says a simple will is all a normal family needs. The other says a will is a ticket to probate court.
Both are partly right. The answer depends less on how wealthy you are and more on what you own, where you live, and who would be left to sort it out. If you have neither document yet, you are in the majority: according to Caring.com's 2025 Wills and Estate Planning Study, only 24% of the American adults it surveyed have a will and 13% have a living trust.
This guide covers what each document does, when a will is enough, when a trust earns its higher setup cost, and what probate could cost one California family, plus how Canada differs.
The short answer: A will tells a probate court who inherits your property and who you want to raise your children. A revocable living trust holds your property so it can pass to your family without probate. Most young families need a will first. A trust is worth pricing if you own a home in a state where probate is slow or costly: in California, the default statutory fees on a $1,000,000 probate estate come to $46,000.
Will vs trust: what is the difference?
A will is a set of instructions that only takes effect when you die, and is carried out under a probate court's supervision. A revocable living trust is a legal arrangement that holds your assets while you are alive, lets you keep full control, and passes them to your beneficiaries without going through probate.
A will names an executor (California calls this person the personal representative), says who inherits what, and is where parents nominate a guardian for minor children. Nothing in it happens until a court accepts it after your death.
A revocable living trust is created by you (the grantor), and you usually act as your own trustee, with a successor trustee named to step in later. The Consumer Financial Protection Bureau's guide for trustees describes it as a legal document that gives someone authority to make decisions about the money in the trust if you are sick or injured, and that says who gets it after you die. "Revocable" means you can change it or cancel it while you are alive.
Probate is the court process in between. The Orange County Superior Court in California defines it as the court supervising the transfer of legal title from the person who died to their beneficiaries: proving the will, appointing the executor, appraising property, and paying debts first.
Does a will or a trust avoid probate?
A will does not avoid probate; it is the document probate reads. A trust avoids probate only for the property that is actually titled in the trust's name. And many of a family's biggest assets skip probate either way, because they pass by beneficiary designation.
According to the same California court guidance, these pass outside probate:
- 401(k) and IRA money, as long as people are named as beneficiaries.
- Bank accounts set up as payable-on-death (POD) accounts with a named beneficiary.
- Property held in joint tenancy or community property with right of survivorship.
- Life insurance paid to a named beneficiary.
- Property that a living trust holds title to.
So a beneficiary form can matter more than either document: if your 401(k) still names an ex-spouse, your will cannot fix it. Our guide on how to review your life insurance policy shows how to check them.
What lands in probate is property in your name alone with no beneficiary, very often the house. In California, the court says probate must be completed within one year of the executor's appointment (18 months if a federal estate tax return is required), and that it "can cost from 4% to 7% of the total estate value, sometimes more."
Will or trust: which is better for your situation?
Neither is better in general; each fits a different set of facts.
A will alone is often enough if:
- You rent, or your home is modest and your state has simple routes for smaller estates. California, for example, lets heirs collect up to $208,850 of personal property by affidavit and handle a primary residence worth up to $750,000 through a simpler court petition, for deaths on or after April 1, 2025, according to the Judicial Council's form DE-300.
- Most of your money sits in retirement accounts and life insurance with up-to-date beneficiaries.
- Your main goal right now is naming a guardian for young children.
A trust is worth pricing if:
- You own a home in your name in a state where probate is slow or expensive.
- You want someone you chose to manage your money if you become seriously ill. Revocable trusts usually spell out what happens if you become incapacitated, and your successor trustee steps in. For money outside a trust, the matching document is a durable power of attorney; our guide to taking care of aging parents financially explains how it works.
- You want children or grandchildren to inherit in stages rather than all at once when they come of age. See why in our post on whether a minor can be a life insurance beneficiary.
- You have a blended family and want your instructions carried out privately. LawHelpNY explains that "a will becomes a matter of public record during the probate process," while a living trust stays private.
A trust is not a tax shelter. The same LawHelpNY guide notes there is "no inherent estate tax advantage to using a living trust." Federal estate tax only reaches estates above the IRS basic exclusion amount, which is $15,000,000 per person for 2026, so for most families taxes are not the reason to choose one over the other.
A worked example: what probate could cost Lauren's family in California
This example is illustrative. Lauren is 58, divorced, and lives in San Diego. Her two adult children are her heirs. She has a will but no trust. She owns:
- House, in her name alone: appraised at $900,000
- Brokerage account, no transfer-on-death beneficiary: $85,000
- Checking account, no POD: $15,000
- 401(k), both children named as beneficiaries: $240,000
Step 1: find the probate estate. The 401(k) passes by beneficiary designation, so it stays out. Everything else goes through probate: $900,000 + $85,000 + $15,000 = $1,000,000. That is too large for California's small-estate shortcuts, and the house is over the $750,000 primary-residence limit.
Step 2: apply the statutory fee schedule. California law lets both the executor and the estate's attorney take a statutory fee for ordinary services, figured on the appraised value of the estate property. The Orange County Superior Court quotes the schedule: 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, and 1% of the next $9,000,000.
- 4% of $100,000 = $4,000
- 3% of $100,000 = $3,000
- 2% of $800,000 = $16,000
- Attorney's statutory fee: $4,000 + $3,000 + $16,000 = $23,000
- Executor's statutory fee: the same schedule, $23,000
- Total default statutory fees: $23,000 + $23,000 = $46,000, or 4.6% of the probate estate
That is before court filing costs, and before any extraordinary fees the court approves for extra work. The court's page also notes the executor can ask for less and negotiate a reduced fee with the attorney, particularly for a simple estate built around a home.
Step 3: the same family with a funded trust. Suppose Lauren had retitled the house and the brokerage account into a revocable living trust and added a POD beneficiary to her checking account. Her daughter, as successor trustee, could transfer those assets without probate, and the statutory schedule would not apply. Settling a trust still takes work, and a trustee may pay an attorney or accountant, but the cost is not set as a percentage of the estate and there is no court timeline.
Use your own numbers. If Lauren's house were worth $700,000 instead, it could qualify for California's simpler primary-residence petition, and a well-drafted will plus updated beneficiary forms might be enough.
Do you need both a will and a trust?
If you set up a trust, yes, you still need a will. A living trust is normally paired with a short "pour-over" will that catches anything acquired after the trust was set up or never transferred into it, as LawHelpNY explains.
The will also does a job a trust cannot: it is where parents name a guardian. The Orange County Superior Court's guardianship page says you can name your proposed guardian in your will, and the court will try to appoint that person while considering what is best for your child. Our guide on how to choose a guardian for your child covers who to pick and how the money follows the children.
Are you in Canada? Here is what changes
In Canada, probate is a provincial matter, and in some provinces the fee is a percentage of the estate. On an estate of $1,000,000 that goes through probate:
- Ontario: no Estate Administration Tax on the first $50,000, then $15 for every $1,000 above it, according to Ontario's Estate Administration Tax page. ($1,000,000 − $50,000) ÷ $1,000 × $15 = $14,250.
- British Columbia: under the Probate Fee Act, nothing on the first $25,000, $6 per $1,000 from $25,000 to $50,000, and $14 per $1,000 above $50,000. That is $150 + $13,300 = $13,450.
- Alberta: the surrogate court fee tops out at $525 for estates over $250,000.
- Quebec: a notarial will "takes effect as soon as you die. It does not need to be probated."
Ontario's page lists what stays out of the calculation: RRSPs, RRIFs and TFSAs with a beneficiary designation, insurance paid to a named beneficiary, and jointly held assets that pass automatically to the other owner. Those designations do much of the work a living trust does in the US. The Canada Revenue Agency also recognizes alter ego and joint partner trusts for people 65 or older; trusts carry their own tax filing rules, so get advice first.
5 mistakes families make with wills and trusts
- Signing a trust and never funding it. A trust only controls what is titled in its name. If the deed was never changed, the house goes through probate anyway.
- Forgetting the beneficiary forms. Retirement accounts and life insurance follow the form on file, not your will or trust. Check them after every marriage, divorce, or birth.
- Skipping the will because there is a trust. Without a pour-over will, stray assets have no instructions and no guardian is nominated.
- Buying a trust for tax reasons. A revocable trust does not reduce estate or income tax on its own.
- Never updating it. A plan made before a second child, a move, or a divorce may no longer say what you mean.
Your next step
Tonight, make a two-column list: everything you own that has a named beneficiary, and everything that does not. The second column is what your will or trust actually has to handle.
Wills and trusts are legal documents, so have them prepared or reviewed by an estate-planning attorney licensed in your state or province. KAV's insurance professionals are not attorneys, but we can help with the money side. If you would like help turning it into a plan, KAV Solutions offers a complimentary Financial Need Analysis. A licensed insurance professional walks through what you own, how each account is titled, and whether your beneficiary forms match your wishes, so you know what to ask your attorney. The analysis is free and you never pay KAV a fee. If you choose to buy a policy, the insurer pays the professional a commission.
Frequently asked questions
Do I need a will if I have a living trust?
Yes. A living trust is usually paired with a pour-over will that moves any asset left outside the trust into it at your death. The will is also where you nominate a guardian for minor children, which a trust cannot do. Without one, those decisions fall to your state's default rules and the court.
Does a will avoid probate?
No. A will is the document a probate court reviews and enforces. Property in your name alone goes through probate even with a perfect will. Assets with named beneficiaries, payable-on-death accounts, jointly owned property with survivorship rights, and property held in a living trust pass outside probate.
Is a will or a trust public record?
A will becomes public once it is filed for probate, so anyone can usually read who inherited what. A living trust is a private document and generally stays out of the court file. If privacy matters to your family, as it often does in a blended family, that counts in favor of a trust.
Will vs trust for a house: which is better?
A house in your name alone usually has to go through probate if you only have a will. Retitling it into a living trust keeps it out of court. In California, a primary residence worth up to $750,000 may qualify for a simpler court petition, so check your state's small-estate rules before deciding.
How much does probate cost?
It depends on the state. California sets statutory fees for the executor and the attorney: 4% of the first $100,000, 3% of the next $100,000, and 2% of the next $800,000, each. On a $1,000,000 probate estate, that is $46,000 combined. Other states set costs very differently.
Is a will or a trust better in Canada?
For many Canadians, a will plus beneficiary designations on RRSPs, RRIFs, TFSAs and insurance keeps much of the estate out of probate. Probate costs vary widely: about $14,250 on a $1,000,000 estate in Ontario, $13,450 in British Columbia, and $525 in Alberta. Alter ego and joint partner trusts are available from age 65.
KAV Solutions is a women-led team of licensed insurance professionals based in Pennsylvania. This article is general education, not individualized financial, tax, or legal advice. Wills, trusts, probate, and guardianship rules vary by state and province.
