I own a house and have two kids. Will or living trust?
Both. The table splits the jobs a will does from the jobs a funded revocable living trust does. Each cell cites a statute, a court page, or an IRS page.
| Job | Will | Revocable living trust |
|---|---|---|
| Guardian for each minor child | California lets a parent nominate a guardian in a signed writing in the cases Probate Code 1500 lists, and the nomination stays effective after death unless the writing says otherwise. New York uses a will that appoints the guardian, who then has 3 months after probate to qualify. Florida uses a separate witnessed declaration that names each minor child. | The IRS describes the trust instrument as the place you set trustee powers, distribution terms, revocation, and successor trustees. New York puts the guardian appointment in a will. Florida puts it in a separate declaration. |
| Who settles the estate, or the trust | California gives the person named as executor the right to appointment as personal representative. Florida gives the person nominated by the will first preference for letters. | If the trust names who fills a trustee vacancy, that person fills it. California and Florida both put the person named in the instrument ahead of a court appointment. |
| The house | A will can devise the house at death. Florida says death is the event that vests a devise, unless the will says some other event must happen first. | California lets you create the trust by a lifetime transfer of the house to a trustee, or by declaring that you hold it as trustee. There is no trust until there is trust property. After acceptance, the trustee follows the instrument. |
| Property still in your name | California, Florida, and New York each let a will devise property to the trustee of a trust the will identifies. In California the trust instrument has to be signed before, with, or within 60 days after the will. The devised property then becomes part of that trust. Revoking the trust before death makes the devise fail unless the will says otherwise. | The trust administers property already transferred to the trustee. It does not retitle a house you leave in your own name. |
| If you cannot manage the house | The Florida vesting rule times a devise to death, unless the will names another event. The will is not the instrument that fills a trustee vacancy. | Florida creates a trustee vacancy if the trustee is adjudicated incapacitated, then fills it with the person the trust names. California creates a vacancy when a conservator or guardian of the trustee is appointed, then fills it as the instrument provides. |
| What is delivered to the court | California requires the custodian to deliver the will to the superior court clerk within 30 days after learning of the death, unless a probate petition is already filed. The Judicial Branch of California lists wills and probate records as superior court case records. In New York the will is probated before the court approves a guardian named in it. | The California and Florida successor-trustee statutes fill a named vacancy without those sections requiring the trust instrument to be delivered to the clerk. |
| Federal estate tax, death in 2026 | The basic exclusion amount is $15,000,000. Form 706 is required when the gross estate, increased by adjusted taxable gifts and the specific gift tax exemption, exceeds $15,000,000. | Same exclusion and same filing threshold. The IRS treats every revocable trust as a grantor trust under section 676. Section 2038 includes the transferred property if, at death, you can still alter, amend, revoke, or terminate who enjoys it. |
Who nominates a guardian for two minor children
A parent nominates a guardian in a will or another signed writing the state describes. The court makes the appointment. One writing can name both children.
California
Probate Code 1500 lets a parent nominate a guardian of the person or the estate, or both, of a minor child when the other parent nominates or consents in writing, or when that other parent is dead, lacks legal capacity, or would not have to consent to an adoption. Section 1502 says the nomination may be made in a signed writing, and unless the writing says otherwise it remains effective after the parent dies. Section 1514 says the court appoints the guardian. For a guardian of the estate, the court appoints the person nominated under section 1500 unless the court determines the nominee is unsuitable.
New York
Surrogate's Court Procedure Act 1711 applies when a will containing the appointment of a guardian is admitted to probate. The person appointed must qualify and petition for letters within 3 months, unless the will says otherwise, and the court may extend that time. The New York CourtHelp page says a parent can name a guardian in a will, the named person becomes guardian only after the parent dies and the Surrogate's Court judge approves, and the will must be probated first.
Florida
Section 744.3046 lets both parents, or the surviving parent, nominate a preneed guardian of the person or property, or both, of the parent's minor child. The written declaration names who serves if the last surviving parent becomes incapacitated or dies, and it may name an alternate. For each minor child named, it must give the full name as it appears on the birth certificate or as ordered by a court, the date of birth, and the Social Security number if any. The declarant signs it before two attesting witnesses and files it with the clerk. Production of the declaration is a rebuttable presumption that the designated guardian is entitled to serve. The court is not bound to appoint that person if the person is unqualified. Within 20 days after assuming the duties, the preneed guardian petitions for confirmation.
Where the house goes
Transfer the house to the trustee during life. A pour-over will can leave leftover property to that trustee, and the leftover property is still a devise by will.
California Probate Code 15200 lists the ways to create a trust. Two of them cover a house you already own: a declaration that you hold it as trustee, or a lifetime transfer to another person as trustee. Section 15202 says a trust is created only if there is trust property. Section 16000 says that on acceptance, the trustee administers the trust according to the instrument.
California Probate Code 6300 lets a will devise property to the trustee of a trust the will identifies, when the trust terms are in a written instrument other than a will, executed before, at the same time as, or within 60 days after the will. The devise is not invalid because the trust is revocable or because it was amended later. Unless the will says otherwise, the property becomes part of that trust and is administered under the trust instrument. Unless the will says otherwise, revoking or terminating the trust before death causes the devise to lapse.
Florida section 732.513 is the same kind of devise. The will can leave property to the trustee of a written trust identified in the will. The devise is valid even though the trust is revocable. Unless the will says otherwise, the property is not held in a testamentary trust of the testator. It becomes part of the principal of the trust. A written revocation of the whole trust before death invalidates the devise.
New York EPTL 3-3.7 lets a will dispose of estate property to the trustee of a trust identified in the will. The disposition is valid even if the trust is amendable or revocable. The property becomes part of the trust, title vests in the trustee, and the trustee administers it under the trust instrument. Revoking or terminating the trust before death causes the disposition to fail, unless the will makes another disposition.
The house has to be transferred to the trustee. A signed trust with the house still in your name does not hold the house.
The deed and the other title changes are on how to fund a trust.
Who acts if you cannot manage the house
A successor named in the trust fills a trustee vacancy. A will's devise is timed to death unless the will names another event.
Florida section 732.514 says the death of the testator is the event that vests the right to devises, unless the will provides that some other event must happen first. Section 736.0704 is the trust rule for the same person's incapacity: a vacancy occurs if the trustee is adjudicated incapacitated, and a vacancy that must be filled is filled first by the person named in the trust.
California Probate Code 15643 says there is a vacancy in the office of trustee when a conservator or guardian of the person or estate of an individual trustee is appointed. Section 15660 says that if the instrument names the person to fill the vacancy, the vacancy is filled as the instrument provides. If it does not, an interested person may petition the court to appoint a trustee.
Those vacancy rules are about the trustee of the house. The guardian of your children is the nomination covered in the statutes above.
How the two children receive property
The trustee follows the distribution terms you write into the trust. Both children can be beneficiaries under that instrument.
The IRS trust questions and answers say the grantor sets the distribution provisions in the trust instrument, along with the trustee's powers and the successor trustees. California Probate Code 16000 then requires the trustee to administer the trust according to that instrument. No figure on this page states an age, because none of these sources publishes a required age for a distribution from a parent's revocable trust.
A pour-over devise lands in the same instrument. California Probate Code 6300 says the devised property is administered under the trust. Florida section 732.513 says it becomes part of the principal. New York EPTL 3-3.7 says title vests in the trustee to be administered under the trust.
What gets delivered to the court
California sends the will to the superior court clerk. The successor-trustee statutes cited here do not send the trust instrument with it.
Probate Code 8200 says that unless a petition for probate is filed sooner, the custodian of a will has 30 days after learning of the death to deliver the will to the clerk of the superior court of the county where the estate may be administered, and to deliver a copy to the named executor, or if that person cannot be found, to a beneficiary named in the will. The Judicial Branch of California lists wills, and probate records including guardianships and conservatorships, as examples of superior court case records a person requests from the clerk of the court where the case is filed.
The New York CourtHelp page says the will must be probated before the Surrogate's Court judge approves a guardian named in it. Probate there means proving the will is legally valid.
What the IRS does with a revocable trust
A revocable living trust does not remove the house from your taxable estate, and it does not change the 2026 basic exclusion amount of $15,000,000.
The IRS says all revocable trusts are grantor trusts, and that a revocable trust may be revoked and is a grantor trust under section 676, so the income is taxed to the grantor. The IRS estate and gift tax update states a basic exclusion amount of $15,000,000 for a death in 2026. The IRS estate tax page uses that same $15,000,000 as the 2026 filing threshold: Form 706 is required when the gross estate, increased by adjusted taxable gifts and the specific gift tax exemption, exceeds the threshold for the year of death. Section 2038 includes property you transferred if, at death, you still hold a power to alter, amend, revoke, or terminate who enjoys it.
Read trusts and taxes for the grantor-trust filing point, and the best trust types for families shortlist for the irrevocable types. State probate paths are on probate by state. What a living trust does is the short version of the trust half of this page.
Packets on this desk
The posted will packet is $79, paid once. The posted living trust packet is $349, paid once, and it includes the trust, a pour-over will, and a funding list.
Both prices are on the plans and prices page. The planner prints a draft from the answers you type in the browser.
FAQ
I own a house and have two kids. Will or living trust?
Use both. The will is where you nominate a guardian for each minor child and name an executor. The revocable living trust is where the house goes once you transfer it to the trustee. For a death in 2026 the federal basic exclusion amount is $15,000,000 either way, and section 2038 keeps a revocable trust in the gross estate while you can still revoke it.
Sources
- California Probate Code 1500. A parent may nominate a guardian of the person or estate of a minor child in the cases the section lists.
- California Probate Code 1502. The nomination may be made in a signed writing and remains effective after death unless the writing says otherwise.
- California Probate Code 1514. The court appoints the guardian. For the estate, the court appoints the section 1500 nominee unless the nominee is unsuitable.
- New York Surrogate's Court Procedure Act 1711. After a will that appoints a guardian is admitted to probate, the appointee has 3 months to qualify unless the court extends the time.
- New York CourtHelp, naming a guardian in a will. The named person becomes guardian after the parent dies and the Surrogate's Court judge approves. The will must be probated first.
- Florida Statutes 744.3046. Preneed guardian declaration for a minor, filed with the clerk. Rebuttable presumption. Confirmation petition within 20 days after the guardian assumes the duties.
- California Probate Code 8420. The person named as executor has the right to appointment as personal representative.
- Florida Statutes 733.301. First preference for letters in a testate estate is the personal representative nominated by the will.
- California Probate Code 15200 and 15202. A trust may be created by declaration or by a lifetime transfer. A trust requires trust property.
- California Probate Code 16000. The trustee administers the trust according to the instrument.
- California Probate Code 6300. Pour-over devise. The other instrument is executed before, with, or within 60 days after the will. Revocation of the trust before death lapses the devise unless the will says otherwise.
- Florida Statutes 732.513. Devise to the trustee of an identified trust. It becomes principal of that trust unless the will says otherwise.
- Florida Statutes 732.514. Death vests a devise unless the will requires another event first.
- New York EPTL 3-3.7. Testamentary disposition to the trustee of an existing inter vivos trust.
- California Probate Code 15643 and 15660. A conservator or guardian of the trustee creates a vacancy. The person named in the instrument fills it.
- Florida Statutes 736.0704. Incapacity of the trustee is a vacancy, filled first by the person the trust names.
- California Probate Code 8200. Deliver the will to the superior court clerk within 30 days after learning of the death, unless a probate petition is already filed.
- Judicial Branch of California, public records. Wills and probate records are examples of superior court case records.
- IRS, trust questions and answers. All revocable trusts are grantor trusts. A revocable trust may be revoked and is a grantor trust under section 676. The instrument sets distribution provisions and successor trustees.
- IRS, estate and gift tax update. Basic exclusion amount $15,000,000 for a death in 2026.
- IRS, estate tax. 2026 filing threshold $15,000,000.
- 26 USC 676. Power to revoke.
- 26 USC 2038. Power at death to alter, amend, revoke, or terminate.
- TaxFreeTrusts pricing. Will packet $79, paid once. Living trust packet $349, paid once, with a pour-over will and a funding list.