Q: when I die - is it better for my primary residence be in a living trust or my last will and testament?

A: The answer very much depends on who you want to leave it to, and how much trust you have in someone to act as a trustee.

A: It depends. If you want your primary residence left outright to someone, a trust is better because with a Will, it has to be probated and there are statutory executor and attorney fees to be paid that most often will result in the home having to be sold to pay them, so the person you wanted to leave your home to is just is going to get cash left over after the sale less RE commissions and probate attorney and executor fees. And probates can easily take a year to get through and in addition you have filing fees, probate appraisal fees, publication fees, etc.,

With a trust, if your beneficiary wants to live in or rent the home, the home is just transferred outright to them. They can then sell the home if they want to with little more than real estate commissions to pay.

With regards to the comments about trusting your trustee, that is a personal decision. A trustee has certain fiduciary duties to beneficiaries and if the trustee is not doing their job, the beneficiaries will almost always call them to task or have them removed. If you only have one beneficiary, or beneficiaries who get along, you can make one of them or more the trustee as well. Just be aware that in California joint trustees have to act jointly so if there is disagreement it can result in litigation that will be just as expensive as probate, so choose your trustee wisely.

Best of luck,

Priscilla A. Madrid, JD, LLM Estate Planning and Elder Law