Estate planning for family protection

August 20, 2026

David Duringer

By  Attorney David Duringer

Most estate plans fail. I say that because almost all of my clients (my practice is limited to estate planning) have family protection as their primary, overarching objective, yet very few estate plans are designed comprehensively to protect family. Most do not protect family at all, beyond avoiding probate, and quite a few will not even do that.

Nationally, a clear majority of American adults have no estate planning documents at all. State level studies are few, but one recent study indicates about 30% of California homeowners have a revocable trust, which is generally recommended in California over a will because a will alone does not avoid probate and California probate is uniquely burdensome due to high cost, delay, and unwanted publicity.

All trusts are not created equal. But all trusts should at least avoid probate. Do they? Far from it! Most trusts fail to some degree at even the basic objective of avoiding probate (or other costly alternatives such as small estate affidavit or court petitions) because of a lack of “trust funding” which is shorthand for keeping certain assets titled in trust and listing the trust as beneficiary of other assets.

Funding should be completed as soon as possible after signing the estate plan documents, and regularly maintained thereafter as assets change. In my practice, we normally sign and electronically record the home deed right away when signing the estate plan documents, and most of the other funding is handled under my low-cost client maintenance plan (potentially free to those passing my handgun skills test). Approaches to funding assistance vary widely among attorneys — many of whom follow a “trust mill” approach akin to that of non-attorney trust providers.

I will never forget a meeting I had a quarter century ago with a successful litigator down in Orange County who was quite proud of the simple software his paralegals used to crank out a high volume of simple trusts for clients impressed with his luxurious office, paid for by his thriving personal injury practice plus revenue from probates of failed trusts. I decided I would never practice that way, and completed my second law degree, an LL.M in Tax.

So how does my practice differ?

The vast majority of trusts drafted, around California and certainly here in SLO County, seem to be very basic in that they distribute outright to children after both parents pass, or maybe when certain ages are reached.

That kind of “plan” offers zero protection of the inheritance. It fails to protect the child’s inheritance from the child’s creditors, or predators, or from the child himself. From what I’ve observed locally, it doesn’t matter whether you pay several thousand to a local attorney, or several hundred to some online “trustomat”, you are still getting essentially the same structure, what I call a “cookie cutter” or simple probate avoidance trust, which, absent a good maintenance plan, may not even avoid probate. These simple trusts may also help during incapacity, but the planning is typically minimal.

The key basic difference in my approach, aside from robust incapacity planning, is that I only take clients interested in planning seriously for family protection with lifelong subtrusts for beneficiaries. That is the only way to truly protect the inheritance. In addition to careful drafting for asset protection concerns unique to California, depending on the beneficiary special tax planning may be recommended to efficiently grow the asset-protected corpus faster than what is possible with standard drafting by attorneys who are not tax lawyers. Most parents imagine they are leaving a lasting legacy, a retirement nest egg for their kid, but the reality is the vast majority of inheritances are squandered rather quickly. Protecting the inheritance from squandering requires an independent trustee.

Despite the bad stats, clients often tell me they are not concerned about squandering by one or more of their kids, so for those kids instead of using an independent trustee we set up a “beneficiary-controlled trust” which is drafted to protect against the child’s creditors and predators, yet offers zero protection against squandering because the child has practical control.

The two approaches can be mixed, with multiple subtrusts for the same beneficiary. You can maximally protect most of the inheritance from squandering with an independent trustee over the beneficiary’s residual share subtrust, yet also carve out a certain specific dollar amount to fund a subtrust controlled by that beneficiary. In this popular scenario, the latter beneficiary-controlled subtrust for a specific dollar amount would also be a good way to hold guns for that beneficiary. [When my California clients own guns, I always draft their main revocable trust as a purpose-built gun trust, highly customized due to special issues arising under California gun laws. (See Seven Types of Gun Trusts, several of which I invented.)]

Protecting a child’s inheritance is not only for the wealthy. The less wealth your family has, the more important it is to protect it. Even a few hundred thousand is worth protecting in this way, so anyone who owns a home, for example, is a good candidate for this type of planning.

Nor is family protection limited to protecting inherited assets. The mission of my law firm is to help families grow Family Power by transmitting Life, Fortune, and Honor, to descendants. The lifelong continuing subtrusts for beneficiaries can be drafted with values-based incentives to protect the family for generations. There are many optional approaches to incentive trust planning, depending on how serious clients are about this type of planning and perhaps developing a Family Mission Statement, but virtually all my clients love to include this at some level — another important area of planning no longer reserved exclusively for the wealthy.

There are some special situations where your revocable trust may need additional planning. For example, blended families can usually benefit from a three trust arrangement which, while it may sound complicated, is actually a simple solution to prevent the potential disinheritance so often seen in blended families.

Any time you are drafting irrevocable subtrusts, whether to protect inheritance of a child, or to take care of a surviving spouse, for example under planning for blended families, it is important that the drafter is trained as a tax lawyer.

Couples with a long joint life expectancy and a combined estate larger than a few million may want to consider adding flexible transfer tax planning, just in case our current high exclusions disappear. There is an art to charting the proper course, so if you are borderline please schedule your free design meeting for counsel. Those with even higher net worth will need a more rigid ABC structure with formula funding clauses and perhaps additional planning.

There is space here only to scratch the surface so to learn more watch my webinars here.

David R. Duringer, JD, LL.M (tax), is an attorney helping families grow family power by transmitting life, fortune, and honor, to descendants. He has taught defensive handgun and estate planning for decades. Sign up at guntrust.org for his free classes in Atascadero or Morro Bay.