Hiring the right California estate planning lawyer is one of the most consequential decisions a California resident or business owner makes, and it is almost always deferred too long. The consequences of dying without a properly funded estate plan in California are specific, measurable, and avoidable: a probate process that can take 12 to 18 months, statutory attorney and executor fees calculated as a percentage of gross estate value, and a public court record that exposes your family's finances to anyone who searches. California is one of the most expensive probate jurisdictions in the country, and the single most effective way to avoid that cost is a complete, properly executed estate plan created before it is needed.
Berliner Cohen LLP is a full-service California estate planning law firm that has advised families, business owners, and high-net-worth individuals throughout Northern and Central California for more than five decades. Our estate planning and probate practice covers revocable living trusts, wills, durable powers of attorney, advance health care directives, trust administration, probate, and business succession planning. This guide covers what a complete California estate plan requires, why California's legal environment creates planning challenges that most other states do not, and what to look for when choosing the attorney who will build it.
Why California Creates Distinct Estate Planning Challenges
California's estate planning environment differs from most other states in several structural ways, and each difference creates planning requirements that a generalist practitioner or an out-of-state attorney may not address.
California is a community property state. Assets acquired during marriage are generally owned equally by both spouses regardless of whose name appears on the account or deed. That matters at death because community property in California receives a full step-up in cost basis on both halves when either spouse dies. Separate property receives a step-up only on the decedent's half. The difference can eliminate or substantially reduce capital gains tax for the surviving spouse when appreciated assets are sold later. A plan that does not correctly characterize assets as community or separate property leaves that tax advantage unrealized. For more background on how California's estate laws interact with federal law, see the California Attorney General estate planning overview.
California's probate process is expensive by design. Statutory fees for the attorney and executor are calculated as a percentage of gross estate value, not net equity. A home worth $1.2 million with a $900,000 mortgage still generates probate fees based on $1.2 million. On a $1 million gross estate, combined statutory fees for the attorney and executor together reach approximately $46,000 under the fee schedule set by state law. Those fees are in addition to court filing costs, publication requirements, and appraiser fees. Probate also creates a public court record, which means the contents of a will and the identities of beneficiaries are accessible to anyone.
Proposition 19, effective February 2021, fundamentally changed how inherited real property is treated for property tax purposes. The parent-child exclusion from reassessment, which previously allowed children to inherit investment and rental properties at the parent's assessed value, now applies only to a primary residence and only if the child occupies it as their primary home within one year. For families with real estate investment portfolios, that change altered the calculus of how property should be held and transferred.
California also applies Medi-Cal recovery rules that allow the state to seek reimbursement from a decedent's estate for long-term care costs paid on the person's behalf. Addressing that exposure requires specific trust structuring that a generalist estate plan will not include. None of these considerations are edge cases. They are the routine planning issues that every experienced California estate planning attorney confronts in nearly every client engagement.
The Core Documents in a California Estate Plan
A complete California estate plan is a coordinated set of documents. Each serves a distinct function, and the failure of any one of them to be properly drafted or funded can defeat the plan's purpose.
Revocable Living Trust
For most California families, a revocable living trust is the foundation of the estate plan. During the grantor's lifetime, the trust is fully revocable and remains under the grantor's control. At death, the trust becomes irrevocable and the successor trustee distributes assets according to the trust's terms without court involvement. The trust avoids probate entirely for assets held in the trust's name, keeps the estate private, and allows distribution to beneficiaries in weeks or months rather than the year or more that probate typically requires. IRS guidance on revocable trusts confirms that a revocable trust is tax-neutral during the grantor's lifetime: the grantor continues to report trust income on their personal return and retains the step-up in basis benefit at death.
The probate threshold in California is $208,850 under California Probate Code Section 13100, effective April 1, 2025. Any estate with assets exceeding that amount held in the decedent's individual name must go through formal probate. For most California homeowners, the value of a single property alone exceeds that threshold, making a funded revocable living trust the baseline planning tool rather than an optional upgrade. A trust that is not properly funded, meaning assets are not actually titled in the trust's name, provides no probate avoidance. An experienced California estate planning attorney addresses trust funding as part of the initial engagement, not as a follow-up task.
Pour-Over Will
A pour-over will work in tandem with the living trust. It directs any assets not transferred into the trust during the grantor's lifetime to flow into the trust at death, ensuring nothing is inadvertently left outside the plan. The will also serves the function a trust cannot perform: naming guardians for minor children under California Probate Code Section 6300.
Durable Power of Attorney for Finances
A durable power of attorney authorizes a designated agent to manage financial affairs if the grantor becomes incapacitated. Without one, family members may need to petition the probate court for a conservatorship simply to pay bills or manage accounts. The conservatorship process is expensive, takes time a health crisis does not allow, and results in ongoing court supervision of what should be private family decisions. A properly drafted durable power of attorney eliminates that burden.
Advanced Health Care Directive
California's advanced health care directive combines two functions. It designates a health care agent to make medical decisions on the grantor's behalf if they cannot, and it specifies the grantor's wishes regarding treatment, end-of-life care, and organ donation. Without this document, providers must follow default legal rules about who can make healthcare decisions for an incapacitated patient, which can produce conflict among family members at the worst possible moment.
HIPAA Authorization
A HIPAA authorization allows designated individuals to receive and discuss medical information with healthcare providers. It is separate from the advance directive, and without it, family members who are not named as healthcare agents may be excluded from conversations about a loved one's condition. A complete California estate plan includes an executed HIPAA authorization alongside the advance directive.
Beneficiary Designations and Account Titling
Retirement accounts, life insurance policies, and certain financial accounts pass to named beneficiaries directly, outside the probate process and outside the terms of a trust or will. Beneficiary designations that have not been reviewed can override years of careful trust planning. A surviving spouse may still have a former spouse named as beneficiary on a retirement account established before a divorce. Berliner Cohen attorneys review existing designations as part of every estate planning engagement and provide specific guidance on how each account and policy should be titled to coordinate with the plan.
Estate Planning for California Business Owners
Business owners face estate planning complexity that extends beyond what a personal plan addresses. The ownership interest in a closely held business is itself an estate asset, and what happens to that interest at the owner's death or incapacity requires specific legal planning. Berliner Cohen is a California estate planning law firm that integrates personal estate planning with business succession planning and corporate law in a single coordinated engagement.
Without a funded buy-sell agreement, the death or incapacity of a key owner can trigger a forced sale of the business interest at a fraction of its actual value, create disputes among co-owners, or result in a deceased owner's family members becoming unintended business partners. A buy-sell agreement funded by life insurance provides the liquidity to purchase the departing owner's interest at a predetermined price and protects both the family and the remaining owners from those outcomes.
For family-owned businesses, succession planning addresses management transition alongside financial transfer. Who takes over operations, how the business interest transfers to the next generation, and how family members who are not involved in the business are treated equitably are all decisions that require coordinating corporate documents, trust planning, and tax strategy. Businesses in California that defer succession planning until a health crisis or forced exit typically achieve significantly worse financial outcomes than those who plan in advance.
Berliner Cohen attorneys work with business owners on grantor retained annuity trusts for transferring appreciating business interests at reduced gift tax cost, family limited partnerships for asset protection and estate tax efficiency, and qualified opportunity zone investments as part of a broader tax deferral strategy. The firm's full-service structure means that the estate plan and the business succession plan are built together from the beginning, not retrofitted to each other after the fact.
Federal and California Tax Considerations
California has no state estate tax. Federal estate tax applies to estates above the exemption threshold set by current law. Under the One Big Beautiful Bill Act, signed into law on July 4, 2025, the federal estate and gift tax exemption is $15 million per individual and $30 million per married couple. The exemption is permanent and indexed for inflation starting in 2027. Estates above the exemption pay federal estate tax at a top rate of 40 percent on the excess. Full details are available from the IRS estate and gift tax overview.
For estates that approach or exceed the exemption, Berliner Cohen's tax planning attorneys work with estate planning counsel to design advanced strategies. Irrevocable life insurance trusts remove life insurance proceeds from the taxable estate. Spousal lifetime access trusts transfer assets to a spouse while preserving income access. Charitable remainder trusts and charitable lead trusts serve clients with philanthropic goals while producing estate or income tax benefits. Qualified personal residence trusts transfer real property to heirs at a reduced gift tax cost. Each of these tools requires coordination between the estate plan and the tax plan, which is why integrated legal counsel produces better outcomes than separate engagements.
California's treatment of pass-through income, capital gains, and the step-up in basis at death creates planning complexity that increases with the size of the estate. The double step-up in basis available to community property at the death of either spouse is one of the most significant tax advantages available to California married couples, and capturing it requires that assets be correctly characterized and titled throughout the relationship.
Probate costs in California are set by statute. For estates that do go through the formal process, the schedule is fixed by California Probate Code Section 10810 At 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, and 1 percent of the next $9 million, the combined attorney and executor fees on a $1.5 million estate reach approximately $46,000. A properly funded revocable living trust avoids those costs entirely.
Trust Administration After a Death
When a revocable living trust's grantor dies, the trust becomes irrevocable and the successor trustee takes over. Trust administration involves notifying heirs and beneficiaries, inventorying and valuing assets, paying final debts and taxes, filing required returns, and distributing assets according to the trust's terms. California law requires the successor trustee to provide formal notice to all heirs and beneficiaries within 60 days of the grantor's death.
Successor trustees who are family members often have no prior experience with their fiduciary obligations. Trustees owe a duty of loyalty to beneficiaries, must act prudently in managing trust assets, must keep accurate records, and must complete the administration within a reasonable time. Errors in trust administration can expose the trustee to personal liability, delay distributions, and create family disputes that could have been avoided with professional guidance. Berliner Cohen guides successor trustees through every step of the administration process.
For estates that require probate because assets were not transferred into a trust or because the decedent died without a plan, our probate attorneys handle the court process efficiently and minimize costs to the extent the law allows.
What to Look for When Selecting a California Estate Planning Lawyer
Selecting the right California estate planning lawyer requires evaluating more than years in practice or proximity to your home. Several criteria distinguish attorneys who will build a plan that works from those who will produce documents that fail when they are tested.
California-Specific Experience
California's estate planning environment, including community property rules, Proposition 19, Medi-Cal recovery, the specific probate fee schedule, and the California Probate Code's procedural requirements, is state-specific. An attorney whose practice is centered in another state or who handles estate planning alongside unrelated practice areas may not have current working knowledge of these rules. Ask specifically about their experience with California community property planning and with the post-Proposition 19 real property transfer environment.
Integration With Business and Tax Counsel
Business owners, real estate investors, and families with complex asset structures benefit from an estate planning attorney whose firm also provides corporate, tax, and real estate counsel. A trust plan that is not coordinated with the business succession plan, or an estate plan that ignores the tax implications of the asset mix, produces results that are legally correct but financially suboptimal. Full-service firms eliminate the coordination gap that arises when multiple unaffiliated practices are involved.
Approach to Trust Funding
The most common reason California revocable trusts fail to avoid probate is that they were never funded. Ask directly how the attorney handles trust funding: whether they assist with real property deeds, provide guidance on retitling financial accounts, and follow up to confirm that funding is complete. A trust that sits in a binder unfunded for years provides nothing.
Berliner Cohen LLP: A California Estate Planning Law Firm Built for the Full Picture
Berliner Cohen has practiced law in California for more than five decades. The firm was founded in San Jose and serves clients throughout Northern and Central California from offices in San Jose, Merced, Modesto, and Mariposa. Our estate planning and probate practice advises individuals and families at every stage of life, from early asset accumulation through retirement, business transition, and estate administration.
The firm's structure, with practice groups in corporate law, tax, real estate, and land use alongside estate planning, means that estate plans for business owners, real estate investors, and families with complex asset structures are built with input from all relevant disciplines. Clients do not encounter the coordination gaps that arise when a personal estate plan and a business succession plan are developed by separate, unaffiliated firms. Berliner Cohen is a California estate planning law firm that handles the full picture.
Our lawyers are active members of many local and state legal associations, such as the Santa Clara County Bar Association, the Silicon Valley Bar Association, the Stanislaus County Bar Association, the California Lawyers Association, and others. You can see Berliner Cohen's LinkedIn page, Bloomberg profile, and our profiles on Trust Analytica, US News Best Law Firms, and BCG Attorney Search.
We handle ADA law, business and real estate litigation, corporate law, estate planning, hospitality law, labor and employment law, land use and municipal law, real estate, tax law, and white-collar crime defense. The company also helps businesses settle their differences through mediation.
Please call our offices to get in touch with Berliner Cohen lawyers regarding your legal needs:
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San Jose Law Firm at 408.286.5800
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Modesto Law Firm at 209.576.011
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Merced Law Firm at 209.385.0700
Frequently Asked Questions
What does a California estate planning lawyer do? A California estate planning lawyer advises individuals and families on how to structure their assets, healthcare decisions, and financial affairs so that their wishes are carried out during incapacity and at death. This includes drafting revocable living trusts, wills, durable powers of attorney, advance health care directives, and HIPAA authorizations, reviewing and updating beneficiary designations, advising on trust funding, and coordinating the estate plan with business succession and tax planning where relevant. California's legal environment requires specific knowledge of community property rules, the state's probate fee schedule, Proposition 19, and Medi-Cal recovery rules that a generalist or out-of-state attorney may not have.
Does California have an estate tax? California has no state estate tax. Federal estate tax applies to estates above the exemption threshold, which is $15 million per individual under the One Big Beautiful Bill Act signed on July 4, 2025. The exemption is permanent and indexed for inflation beginning in 2027. Estates above the threshold pay federal estate tax at a top rate of 40 percent on the excess. For most California families, the primary driver of estate planning cost is not federal estate tax but California probate fees, which are calculated as a percentage of gross estate value and can reach tens of thousands of dollars on a modest estate.
What is the probate threshold in California? The California small estate threshold is $208,850 under Probate Code Section 13100, effective April 1, 2025. Estates with assets exceeding that amount held in the decedent's individual name generally must go through formal probate. For most California homeowners, a single property exceeds that threshold, which is why a funded revocable living trust is the standard planning tool rather than a will alone.
How much does probate cost in California? Statutory attorney and executor fees in California are set by Probate Code Section 10810 as a percentage of gross estate value: 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, and 1 percent of the next $9 million. Combined attorney and executor fees on a $1 million estate reach approximately $46,000. A properly funded revocable living trust avoids those costs entirely by keeping assets out of probate.
What is a revocable living trust and do I need one in California? A revocable living trust holds title to your assets and distributes them to beneficiaries at death without court involvement. For most California residents who own real property, a revocable living trust is the recommended planning vehicle because it avoids probate, keeps the estate private, and allows distribution in weeks rather than the year or more that probate typically takes. A will alone does not avoid probate in California. If your assets exceed the $208,850 threshold and are held in your individual name, they will go through probate without a properly funded trust in place.
What happens if I die without an estate plan in California? If you die without a will or trust in California, your assets are distributed according to the state's intestate succession laws, which prioritize surviving spouses and descendants in a fixed order that may not reflect your wishes. Your estate must go through probate, which is time-consuming and expensive. There is no guardian nominated for your minor children. Your medical and financial wishes during incapacity are not documented, which may require a court-supervised conservatorship. California's intestacy rules are described by the California Legislature and do not allow for the charitable giving, tax planning, or customized distribution that a properly drafted estate plan provides.
How does Proposition 19 affect my estate plan? Proposition 19, effective February 2021, significantly narrowed the parent-child exclusion from property tax reassessment. Before Prop 19, children could inherit a parent's investment or rental properties and retain the parent's lower assessed value without moving in. Under Prop 19, the exclusion applies only to a primary residence and only if the inheriting child occupies it as their primary home within one year. Business owners and families with real estate investment portfolios need to review their ownership and transfer strategies in light of this change.
What is trust administration and how long does it take? Trust administration is the process of managing and distributing a trust's assets after the grantor's death. The successor trustee notifies heirs and beneficiaries, inventories assets, pays debts and taxes, files required returns, and distributes the estate according to the trust's terms. California law requires formal notice within 60 days of the grantor's death. Simple trust administrations typically complete in four to six months. Complex estates with business interests, multiple properties, or beneficiary disputes may take longer. Unlike probate, trust administration does not require court supervision.
Do I need an estate plan if I am a business owner? Yes. A business owner's estate plan must address what happens to the ownership interest in the business at death or incapacity, not just to personal assets. Without a funded buy-sell agreement, the business may face a forced sale, co-owner disputes, or the transfer of ownership to family members who did not intend to become business partners. Business succession planning and personal estate planning need to be developed together, not as separate exercises.
How often should I update my estate plan? Review your estate plan after every major life event: marriage, divorce, birth or adoption of a child, death of a named trustee or beneficiary, substantial change in assets, purchase or sale of real property, start or sale of a business, or a move to or from California. Significant law changes, such as Proposition 19 in 2021 and the One Big Beautiful Bill Act in 2025, also require plan review. Most estate planning attorneys recommend a comprehensive review every three to five years at minimum.
What is the role of community property in California estate planning? California's community property rules mean that assets acquired during marriage are generally owned equally by both spouses. At the death of either spouse, community property receives a full step-up in cost basis on both halves of the community, not just the decedent's share. This eliminates or substantially reduces capital gains tax when the surviving spouse sells appreciated assets. A plan that incorrectly classifies or titles community property as separate property loses that advantage. Correct asset characterization throughout the marriage is a core part of California estate planning.
How does Berliner Cohen serve clients outside of San Jose? Berliner Cohen serves clients throughout Northern and Central California from offices in San Jose, Merced, Modesto, and Mariposa. As a full-service California estate planning law firm with deep roots in both the Bay Area and the Central Valley, the firm advises clients across a broad geographic range and regularly handles trust administrations, probate proceedings, and estate planning engagements for families in multiple California counties. Contact the firm to discuss your situation regardless of your specific location within Northern or Central California.