When a loved one passes away, families often find comfort in knowing that a revocable living trust will guide the distribution of assets, sparing them from the costly and time-consuming probate process. But what happens when an asset like a home, a bank account, or a business interest was never properly transferred into the trust? Many people mistakenly believe that this oversight means formal probate is unavoidable. In California, however, there is a powerful legal remedy that can often correct this problem: the Heggstad petition.
At The Dayton Law Firm, P.C., we frequently assist clients in navigating this exact situation. Below, we take a deep dive into what a Heggstad petition is, when it’s appropriate, and how it can help you protect your loved one’s estate while avoiding probate court.
Understanding the Heggstad Petition
A Heggstad petition is a legal filing made under California Probate Code §850 that allows a trustee to request a court order confirming that an asset belongs to a trust—even if the title was never formally transferred. The process is named after the landmark case Estate of Heggstad (1993), in which a California appellate court ruled that a written schedule of trust property could be enough to bring an asset into a trust, even if the legal title was not updated.
This remedy is particularly valuable because it enables families to avoid the probate process for assets that were inadvertently left out of the trust but were clearly intended to be included.
When a Heggstad Petition Makes Sense
A Heggstad petition is appropriate when a trust exists, but one or more assets were not correctly titled in the trust’s name. The most common example is a home where the deed still lists the decedent individually rather than the trust. Other examples include investment accounts, bank accounts, or business interests that were omitted from the formal trust transfer process.
However, this is not a free pass. It works best when there is strong evidence that the settlor—the person who created the trust—intended for the asset to be part of the trust. This intent can often be shown through a schedule of assets attached to the trust, a general assignment document, or correspondence that makes the settlor’s wishes clear.
Legal Requirements for Success
Not every Heggstad petition is granted. The court evaluates several factors before approving such a request. First and foremost, the trust must be valid and clearly show the settlor’s intent to include the disputed asset. A Schedule A or similar document listing the asset—even in general terms—can be critical. A general assignment document stating that the settlor intended to transfer “all personal property and real estate” into the trust may also help.
Supporting evidence can include declarations from the trustee or attorney who prepared the trust, copies of financial statements, and any written communications from the settlor. The court also considers whether there is any opposition to the filing. If other beneficiaries or heirs contest the request, the case may become more complex and require additional legal briefing or a hearing.
Assets Commonly Addressed in Heggstad Petitions
Real estate is the most common asset involved in Heggstad petitions. A decedent might have listed the property in the trust’s schedule but never formally recorded a deed transferring title into the trust. In such cases, this process allows the trustee to avoid probate by securing a court order confirming the trust’s ownership of the property.
Other assets that can be included through these petitions include:
- Bank and brokerage accounts
- Business interests, such as shares in an LLC
- Valuable personal property, in some cases
It’s important to note that certain assets, like retirement accounts or jointly held property, may not qualify unless they were explicitly addressed in the trust documents and beneficiary designations.
The California Heggstad Petition Process
Filing a Heggstad petition is a court-based legal procedure, but it is generally more streamlined than a full probate process. The process begins with a thorough review of the documents and the asset in question. The trustee, often working with an attorney, then prepares a petition under Probate Code §850.
The documents are filed with the probate court in the county where the decedent resided or where the property is located. Interested parties, such as other beneficiaries or heirs, must be notified. If no one objects, the court may approve the petition without a formal hearing. However, many counties schedule a hearing by default.
If the petition is approved, the court issues an order confirming that the asset is part of the trust. This order is then recorded (in the case of real property) or presented to the financial institution or entity holding the asset, allowing the trustee to assume control.
Why Choose a Heggstad Petition Over Probate?
Compared to probate, a Heggstad petition is often faster, cheaper, and far less invasive. Probate proceedings can last a year or more and involve court supervision, mandatory notices, creditor claim windows, and higher attorney and executor fees. In contrast, Heggstad petitions may be resolved in a matter of weeks or a few months, depending on court schedules and whether there are any objections.
Another significant advantage is privacy. Probate is a public proceeding, meaning that anyone can review the inventory of the estate. A Heggstad petition, while still filed with the court, typically involves fewer disclosures and less risk of public exposure.
Most importantly, a successful petition allows the trustee to administer the trust as originally intended, honoring the decedent’s wishes without triggering an unnecessary court process.
Mistakes That Lead to the Need for a Heggstad Petition
Heggstad petitions are often necessary due to preventable mistakes made during the estate planning process. These include:
- Failing to record a new deed transferring real property into the trust
- Forgetting to change account titles or ownership after creating the trust
- Believing that simply listing the asset in Schedule A was sufficient
- Not updating the trust as new assets were acquired
These missteps highlight the importance of working with an experienced estate planning attorney. At The Dayton Law Firm, P.C., we conduct full funding reviews to ensure all assets are properly transferred and that the trust is ready to function without court intervention.
When Heggstad Petitions Aren’t Enough
While powerful, these petitions aren’t appropriate in every case. Courts may deny the petition if the trust lacks any documentation of the disputed asset or if there are credible objections from heirs or creditors. Likewise, if the asset was acquired after the settlor’s death and not formally included in the trust, the petition may not apply.
Ambiguity in the trust’s language, missing schedules, or evidence that contradicts the settlor’s intent can all prevent a successful outcome. In these situations, formal probate or litigation may be required.
How The Dayton Law Firm, P.C. Can Help
If you’ve discovered that a loved one’s asset was left out of their trust, don’t panic. The experienced attorneys at The Dayton Law Firm, P.C. can evaluate whether a Heggstad petition is an option in your case. We guide clients through the entire process, from gathering evidence and preparing the filings to appearing in court and securing the final order.
We also assist families in updating or correcting existing trusts and ensure that all assets are properly transferred. Whether you’re in the early stages of administering trusts or facing challenges with an omitted asset, we provide the clarity and legal support you need.
Frequently Asked Questions
The following are answers to some of the most frequently asked questions we at The Dayton Law Firm, P.C., receive regarding Heggstad petitions:
How long does a Heggstad petition take?
In most cases, the process can be completed within two to four months, depending on court availability and whether any objections are raised.
Can I file a Heggstad petition without a lawyer?
It’s possible, but strongly discouraged. These petitions require specific evidence, legal analysis, and procedural compliance that most individuals are not equipped to handle without the assistance of counsel.
What if someone objects to the petition?
If an interested party contests the petition, the case becomes adversarial and may involve a formal hearing, legal briefs, and witness declarations. Representation by a probate attorney is essential in contested cases.
Is a Heggstad petition the same as trust litigation?
No. A Heggstad petition is a procedural request to confirm trust ownership of an asset. Litigation, by contrast, involves disputes over the validity or interpretation of the trust itself.
Can a Heggstad petition be filed years after death?
Yes, but delays can make the process harder. It’s best to act promptly while records and witnesses are still available.
Avoid Probate with the Right Legal Strategy
When assets are left out of a trust, many families assume that probate is the only solution. But with the help of a Heggstad petition, you may be able to correct this mistake and administer the estate privately and efficiently. The Dayton Law Firm, P.C. has helped countless California families do just that.
If you’re facing questions about an improperly funded trust or a missing asset, contact us today for a consultation. We’ll review your situation and help determine whether a petition is the right path forward.