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Will vs living trust: probate costs and special needs trusts

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Pick your state and type the value of what would go through probate. See the lawyer and executor fees your state's law sets, and compare them with a living trust quote. Then learn how revocable, irrevocable and special needs trusts work. Education only, not legal advice.

Key facts

  1. A will goes through probate court; a funded living trust doesn't. In California, the fastest probate typically takes 9 months.
  2. Some states set probate fees by law. In California, a $500,000 estate means $13,000 for the lawyer and $13,000 for the executor.
  3. A revocable trust doesn't shelter money from Medicaid or SSI. Because you can take it back, it still counts as yours.
  4. A special needs trust can hold money for a disabled person without ending their SSI or Medicaid, if it follows the federal rules.

Probate fees: what your state's law sets

$26,000

lawyer + executor fees set by California law

Lawyer fee

$13,000

Executor fee

$13,000

Creditor wait

4+ months

If $500,000 goes through probate in California, ordinary fees come to about $26,000. Type a living trust quote under More options to compare. A trust only avoids probate for what you actually move into it.

Show the math
  • Executor fee (Cal. Probate Code 10800): 4% of $100,000.00 + 3% of $100,000.00 + 2% of $300,000.00 = $13,000.00
  • Lawyer fee (Cal. Probate Code 10810): same schedule = $13,000.00
  • Total: $13,000.00 + $13,000.00 = $26,000.00
More options

Got a quote for a living trust? Type it to compare. In another state, type the total fee a local probate lawyer quoted, as a percent of the estate.

Worked examples (ordinary fees)

ExampleLawyer + executorTotal
California, $500,000 (the default)$13,000 + $13,000$26,000
California, $1,000,000$23,000 + $23,000$46,000
Florida, $500,000$15,000 + $15,000$30,000
Florida, $1,000,000$30,000 + $30,000$60,000
Missouri, $500,000 (minimum fees)$14,050 + $14,050$28,100
Another state, $400,000 at a 3% quoteOne quoted fee$12,000

Hand check, row 1 (California): 4% of the first $100,000 is $4,000; 3% of the next $100,000 is $3,000; 2% of the remaining $300,000 is $6,000. $4,000 + $3,000 + $6,000 = $13,000 for the executor, and the lawyer's schedule is the same, so $26,000 in all (Cal. Prob. Code 10800, Cal. Prob. Code 10810).

Hand check, row 4 (Florida, $1,000,000): the executor gets 3% of the first $1,000,000 = $30,000. The lawyer gets $3,000 for the first $100,000 plus 3% of the next $900,000 ($27,000) = $30,000. Total $60,000 (Fla. Stat. 733.617, Fla. Stat. 733.6171).

Will vs living trust at a glance

QuestionWillRevocable living trust
Goes through probate court?Yes, for property in your name aloneNo, for property moved into the trust (California Courts)
Must you move property into it?NoYes. A living trust only controls what you retitle to it (CFPB)
Helps if you can't manage money?No. A will takes effect only at death (SSA POMS SI 01120.200)Yes. The trustee or successor trustee steps in (CFPB)
Can you change it?Yes, while you're ableYes. Revocable means you can take it back (SSA POMS SI 01120.200)
Counts as yours for Medicaid and SSI?Yes, while you own itYes. It doesn't shelter money from these programs (42 U.S.C. 1396p, SSA POMS SI 01120.200)

Special needs trusts: keeping SSI and Medicaid

A person can't get SSI with more than $2,000 in countable resources ($3,000 for a couple) (SSA POMS SI 01110.003). Leaving money directly to a disabled family member can push them over. A special needs trust (also called a supplemental needs trust) holds the money and pays for extra needs instead (SSA POMS SI 01120.200). The federal rules for trusts holding the person's own money are in 42 U.S.C. 1396p(d)(4).

Since Dec. 13, 2016, a disabled person can set up their own first-party trust; before that it had to be a parent, grandparent, guardian or court (SSA POMS SI 01120.203). States run Medicaid, so ask your state's Medicaid office or a special needs lawyer how your state applies these rules.

What this leaves out

Sources

Education only, not legal advice. We show what state laws and federal benefit rules say and do math on the numbers you type; we don't tell you which document to sign. Laws change and every family is different, so talk with a licensed attorney in your state before you act. Nothing you type is sent or saved by us. No company pays to be on this page, and there are no partner links.

FAQ

Is a living trust better than a will?

It depends on your family and property. A funded living trust skips probate for what's in it and lets a successor trustee step in if you can't manage money. A will is simpler to set up but goes through probate. Ask a lawyer in your state.

How much does probate cost?

In California the law sets ordinary fees: on a $500,000 estate, $13,000 for the lawyer and $13,000 for the executor. Florida's presumed-reasonable fees on $500,000 are $15,000 each; Missouri's minimums are $14,050 each.

Does a revocable trust protect assets from Medicaid?

No. Federal Medicaid law counts everything in a revocable trust as yours (42 U.S.C. 1396p(d)(3)), and SSI usually does too.

What is a special needs trust?

A trust that holds money for a disabled person and pays for extra needs, so the money doesn't count against the $2,000 SSI limit. Trusts with the person's own money must be set up before 65 (or be a nonprofit pooled trust) and pay Medicaid back at death.

Education only, not legal or tax advice. Laws and benefit rules come from state statutes, courts and federal agencies with dates; talk with a licensed attorney in your state before you act.

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