Trusts
Trusts
Drafting, administration and litigation of California trusts — from a simple revocable living trust to QPRTs, QTIPs, ILITs and charitable structures.
A trust is a legal arrangement, defined in California by Probate Code section 82(a), in which a trustee holds and manages property for named beneficiaries. Trusts are revocable (a living trust) or irrevocable. Assets properly titled in a trust generally avoid probate and its statutory fees.
Tresp Law, APC has extensive experience with trust drafting, administration, and litigation. As an accomplished litigator, experienced trust administrator, and tax attorney with a Master of Laws in Taxation, Elizabeth A. Tresp, JD, LL.M. is uniquely qualified to identify the best approach for your particular need.
Trusts are defined by California Probate Code section 82(a), and can come in a number of forms. Trusts may be revocable, sometimes known as a “Living Trust,” or irrevocable. Both include a number of elements that define the assets held within, designate your beneficiaries, and designate a trustee to manage the trust assets. Both forms of trusts are indispensable elements of your estate plan.
Assets in a trust, other than a testamentary trust, most often will avoid the probate process and the associated statutory fees. With the guidance of Elizabeth A. Tresp and her team, you can ensure that your assets are protected and that your beneficiaries are able to avoid the stress and expense that the probate process can cause. A will, alone, is not enough.
A trust can also prove critical to avoid conservatorship proceedings if you ever become physically or mentally incompetent before your death.
Trust basics
- Statutory definition
- California Probate Code §82(a)
- Revocable
- Can be amended or revoked during the settlor’s lifetime; used in most estate plans
- Irrevocable
- Generally cannot be changed once created; used for tax, creditor and charitable planning
- Funding
- A trust only avoids probate for assets actually re-titled into it — an unfunded trust does not work
- If funding was missed
- A Heggstad petition may move the asset into the trust after death
What kinds of trusts are there?
Trusts can take many forms, including:
- Revocable Living Trust
- Irrevocable Trust
- Generation-Skipping Trust
- Special Needs Trust
- Private Foundations
- Qualified Personal Residence Trust (QPRT)
- Qualified Terminable Interest Property Trust (QTIP)
- Irrevocable Life Insurance Trust (ILIT)
- Grantor Retained Interest Trust (GRIT)
- Grantor Retained Annuity Trust (GRAT)
- Grantor Retained Unitrust (GRUT)
- Charitable Trusts
Revocable or irrevocable — which do you need?
| Revocable living trust | Irrevocable trust | |
|---|---|---|
| Can you change it? | Yes, at any time while competent | Generally no, without court or beneficiary consent |
| Avoids probate | Yes, for funded assets | Yes |
| Protects from your own creditors | No | Often yes, depending on structure |
| Estate tax treatment | Assets remain in your taxable estate | May remove assets from your taxable estate |
| Typical use | The core of most California estate plans | Tax, creditor, charitable and special-needs planning |
Which structure is right depends on what you own, what you are trying to protect against, and your tax picture. That analysis is what an initial consultation is for.
Speak with a estate and trust attorney
Tresp Law, APC is an excellent Estate and Trust law firm in San Diego County, with offices in Cardiff-by-the-Sea, Mission Brewery Plaza in San Diego, and Kemmerer, Wyoming. Not all lawyers are equal. If you need a proactive, knowledgeable, and effective trust lawyer, call us today at (858) 248-2779 or contact us online to schedule a consultation.
Related services
Common questions
Frequently asked
What is the difference between a will and a trust?
A will takes effect at death and its assets pass through probate. A trust takes effect when it is signed and funded, operates during your lifetime and after death, and assets properly titled in it avoid probate. Most California plans use both — a trust plus a pour-over will.
Do I have to put my house in the trust?
If you want the house to avoid probate, yes. A trust only controls what has been re-titled into it. Real property is transferred by recording a deed to the trustee. An unfunded trust is one of the most common and most expensive planning failures we see.
Does a revocable living trust protect assets from creditors?
Not from your own creditors during your lifetime. Because you retain the power to revoke it, the assets are still treated as yours. Creditor protection generally requires an irrevocable structure, and the planning has to be done before a claim arises.
What happens to a trust when the settlor dies?
The successor trustee takes over and begins trust administration — giving statutory notice to beneficiaries and heirs, inventorying and valuing assets, paying debts and taxes, and distributing per the trust terms. See trust administration for the full sequence.
Who should serve as trustee?
Someone organized, impartial, and willing to take on a fiduciary duty. That can be a family member, a professional fiduciary, or a corporate trustee. Naming the wrong person is a frequent source of the disputes our litigation team is later asked to resolve.
This page is general legal information, not legal advice, and does not create an attorney-client relationship. California trust and probate law is fact-specific and deadlines are unforgiving — please speak with a qualified attorney about your own circumstances.
Talk with a San Diego trust & estate attorney
Let’s protect what you’ve built.
Whether you are planning ahead, administering a trust or estate, or facing a dispute, our attorneys will tell you plainly where you stand and what your options are.