Most families with an estate plan assume they’re protected. Many of them aren’t — not because their trust was drafted incorrectly, but because their assets were never put into it. A trust that isn’t funded is not a plan. It’s a set of papers.
When I was in law school, my grandfather passed away. He had an estate plan — prepared by a competent attorney, properly signed and filed. The family assumed everything was in order.
It wasn’t. Because his assets had never been transferred into the trust, his estate went through a lengthy, expensive probate process. The documents were fine. The implementation had never happened.
I’ve spent 35 years making sure that never happens to my clients. Every estate plan I create is fully implemented — documents drafted, assets retitled, accounts coordinated — before I consider the engagement complete. A plan that isn’t funded is not a plan.
When families come to me with an existing estate plan, the most common finding is one of two things. Either the home or a major financial account is still titled in their personal name rather than the name of their trust — meaning it would go through probate at death regardless of what the trust says. Or the trust was drafted fifteen to thirty years ago and contains provisions that made sense then but create serious problems now.
A generation ago, many couples faced potential federal estate tax exposure. To address this, attorneys drafted trusts that split into two separate trusts upon the death of the first spouse — a Survivor’s Trust and a Decedent’s Trust. Setting up those two trusts required an attorney, was complex, and was expensive.
Today, the federal estate tax only affects approximately 1% of the population. It doesn’t apply until the net value of an estate exceeds $30 million upon the death of the surviving spouse. For the vast majority of West Valley families, the two-trust structure is completely unnecessary — but it’s still sitting inside trusts drafted decades ago, waiting to create problems.
The Decedent’s Trust created at the first spouse’s death is irrevocable. The surviving spouse cannot change who inherits it — regardless of what has changed in the family since the trust was written.
I worked with a surviving spouse recently whose wife had passed, triggering the two-trust structure in their old plan. The Decedent’s Trust held over $1 million in assets. The beneficiaries — set irrevocably years earlier — included three children. Two of the three had developed serious drug addiction issues. One had been homeless and out of contact for years. The surviving spouse had updated his Survivor’s Trust to address the situation. He could do nothing about the Decedent’s Trust. Over $1 million would pass to those beneficiaries regardless of circumstances — because the plan had never been updated to reflect reality.
That is what an outdated estate plan looks like in practice. The documents weren’t wrong when they were written. The family simply changed, and the plan didn’t.
The foundation of most California estate plans. A properly funded trust allows assets to transfer privately at death without court involvement, provides instructions if you become incapacitated, and avoids the time and cost of probate. Critically — it must be funded. Every asset that should pass through the trust must be retitled in its name.
Works alongside the trust to capture any assets that weren’t transferred into the trust during your lifetime, directing them into the trust at death. Not a substitute for proper funding — but an important safety net.
Authorizes someone you trust to handle financial and legal matters if you become incapacitated. Without this, a family may need to go to court to establish a conservatorship — a costly and time-consuming process.
Specifies your medical wishes and appoints someone to make healthcare decisions on your behalf if you cannot. In California, this document is particularly important for ensuring your preferences are honored.
Allows designated family members to access your medical information, which is essential for coordinating care decisions during a health crisis.
California’s probate threshold is among the lowest in the country. Any estate with gross assets over $184,500 — including the full value of a home, before any mortgage — is subject to probate. In the West Valley, where a modest home can easily be worth $900,000 to $1.5 million, probate is a near-certainty without a properly funded trust. California probate fees are set by statute and calculated on the gross value of the estate — meaning a $1 million home generates roughly $46,000 in combined attorney and executor fees, regardless of what the mortgage is.
Founder, The Estate Planning & Elder Law Firm
In California, a will alone is generally not sufficient for homeowners. A will must go through probate — a court-supervised process that is time-consuming, costly, and public. A revocable living trust avoids probate entirely for assets titled in its name. Most California families who own property are better served by a trust than a will alone.
If assets aren’t retitled in the name of your trust, those assets go through probate at death — as if the trust didn’t exist. This is one of the most common and costly estate planning failures. A trust is only as effective as its funding.
Any major life change warrants a review — marriage, divorce, the birth of a child or grandchild, a death in the family, significant changes in assets, or a move to a new state. Beyond life events, California law changes regularly. A plan drafted more than five to ten years ago should be reviewed to confirm it still reflects both your wishes and current law.
Almost certainly not for most families. The two-trust structure was designed to address federal estate tax exposure that now only applies to estates above $30 million. For the vast majority of West Valley couples, this structure adds unnecessary complexity and creates limitations that can have serious consequences. A trust review will confirm whether simplification makes sense for your situation.
Any estate with gross assets over $184,500 — including real property at its full market value before deducting any mortgage — is subject to California probate. Given property values in the West Valley, most homeowners exceed this threshold significantly. Probate fees in California are set by statute and can easily reach $40,000 to $60,000 or more on a typical home.
Online documents may satisfy the basic formalities but almost never address how assets are titled — which is where most estate plans actually fail. A trust that exists on paper but isn’t funded provides no probate protection. An estate plan is only as good as its implementation.
Whether you’re creating an estate plan for the first time or reviewing one that hasn’t been updated in years, a first conversation is straightforward. We look at what you have, identify what’s missing or outdated, and tell you honestly what needs to change. No obligation — just clarity.
