Q&A: Why setting up a living trust may be wise, especially in California

Dear Liz: Is there a minimum amount of assets required before a revocable living trust is advisable? I am retired but my wife is still working. If we do not include our 401(k) plans, our total liquid assets (my wife’s monthly salary, my monthly Social Security benefit and my pension check) are below $100,000. We do not own a house or other real estate and do not have any major outstanding loans. We own our only car, a 2009 non-luxury vehicle.

Assuming we need a trust, do we still need to make out a will? If so, can we use a state-specific form online or just make out a handwritten will? Lastly, can a will be “until further notice” or do we have to update it each year? It should be obvious that we are trying to save expenses where we can.

Answer: Living trusts allow estates to avoid probate, the court process that otherwise oversees the paying of creditors and distribution of someone’s assets. (The sources of income you listed aren’t considered assets, by the way, since those will cease upon your deaths and can’t be transferred to other heirs.) Living trusts offer privacy, because probate is a public process, and can make it easier for a designated person to take over for you if you should become incapacitated.

There’s no specific dollar amount of assets for which a living trust becomes a good idea. In many states, probate isn’t a big deal, while in others — including California — probate is expensive enough that the cost of setting up a living trust can be worthwhile. Even in California, smaller estates (those under $150,000) can avoid probate or qualify for a streamlined process that can make living trusts unnecessary.

Those with larger estates may be able to avoid probate using other methods.

The money in your 401(k)s, for example, will pass directly to the beneficiaries you name. In many states, you also can name a beneficiary for a vehicle right on the registration form so your car could avoid probate. Some states also offer this “transfer on death” option for real estate.

“Plan Your Estate,” an excellent primer from self-help legal publisher Nolo, details your options.

Living trusts typically replace the need for a will, although a lawyer likely would recommend creating a “pour-over” will to include any assets accidentally left out of the trust. If you don’t have a living trust, you’ll definitely need wills to outline how you want your property distributed.

You also should create powers of attorney for healthcare and for finances, so that someone you name can make decisions for you should you become incapacitated. These documents are probably more important than a will because they can determine your quality of life at the end of your days rather than just what happens to your stuff when you’re beyond caring.

Do-it-yourself options are fine if your estate is small, simple and unlikely to be challenged by contentious heirs. Each state has specific requirements for making a legal will, which will be detailed in the software or online forms you use. You don’t have to update a will yearly but it’s a good idea to at least review your estate documents annually to see if any changes might be needed.

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