• California Heggstad Petition

Filing a California Heggstad Petition

What is a Heggstad Petition and when can this process be used? First, be aware that is not uncommon for a decedent who executed a Trust prior to their death accidentally fail to formally transfer all of their assets into their trust prior to dying. This may occur for a number of reasons.

Reasons to File a California Heggstad Petition

There are several reasons a person may want to consider filing a Heggstad Petition. They are:

  1. The person creating the trust forgot to transfer the property.
  2. The person died before the transfer is complete.
  3. The paperwork effecting the transfer is flawed.
  4. The person creating the trust did not know that the title to the property needed to be changed.
  5. In some situations, the real property that was already transferred into a trust might be removed from it so that the property can be refinanced. Due to extenuating circumstances, the property was never put back into the trust and therefore, was not held any more as a trust asset.
“Thank you so much for your assistance with our Heggsted petition. It was successfully granted today without a hitch. ” H. Robinson
“The judge complimented me on the thoroughness of the paperwork. That is a great compliment to you! It wouldn’t have been possible without you.!” H. Robinson

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In order to clear title to the property so that it can be sold, refinanced or transferred to the rightful beneficiary, properties valued over $150,000 would usually have to go through a full probate process. Fortunately, California law allows for a shortened and much less expensive option for those caught in this situation. Sometimes, the filing of a California Heggstad petition can work to transfer the property to the beneficiaries rather than the estate having to be fully probated.

History of the Heggstad Case

In the Heggstad case, Mr. Heggstad had executed his trust and identified in a Schedule of Assets the items he intended to transfer and include in his trust. This Schedule of Assets included his house, however, unfortunately, Mr. Heggstad failed to formally finalize his intentions with the execution and recording of a grant deed to formally transfer the house into his trust. The Court ruled that having the assets listed on a schedule of assets attached to the trust was sufficient to show that decedent Heggstad intended to include those assets in his trust. This rule of law has been expanded to include assets that may not necessarily be listed on a Schedule of Assets when the decedent has shown other forms of written intent to include in the trust.

Heggstad Petition Definition

Under California Probate Code §850(a)(3), a trustee or any interested person may file what is now known as a Heggstad petition when:

  • The trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another;
  • The trustee has a claim to real or personal property, title to or possession of which is held by another; and
  • The property of the trust is claimed to be subject to a creditor of the settlor of the trust.

A Probate Code §850 petition may also include claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject matter of the §850 petition.

The filing of a California Heggstad Petition is a court process used to get a court order declaring that property listed on a trust schedule is nevertheless a trust asset, despite the fact that title to the property was not formally transferred to the trust. Probate Code Section 850 incorporates the court’s ruling in the Estate of Heggstad (1993) 16 CA4th 943, 20 CR2d 433. In that case, the court held that a written declaration of trust by the owner of real property that included an attached schedule listing a specific property was sufficient to create a trust in that property, and a transfer of title was unnecessary when a settlor declares himself or herself to be a trustee in his or her own property

Heggstad Petition Procedure – The Process

A Petition under Probate Code §850 is commenced with the filing of a verified petition which states the facts on which the claim is based and includes the names and addresses of each person entitled to notice of the petition. After the filing of the Petition, the clerk will set the matter for hearing.

A Heggstad Petition filed under Probate Code 850 requires 30 days notice to all interested parties. This 30 day notice requirement is longer than the normal 15 day requirement of most other probate court petitions. Typically a Heggstad Petition can be prepared, filed and heard by a judge and finished within approximately 60 days. This is substantially shorter than the 7-10 months that a typical full probate takes.

When the Heggstad Petition is filed, it must be supplemented with documentation which support the Petition. This documentation must show the unquestionable intent of the Settlor to transfer the property into the trust as an asset. This is typically satisfied by attaching the signed schedule of assets that specifically identifies the property inadvertently not transferred into the trust.

Filing Heggstad Petition is a Gamble – The Pros and Cons

A Heggstad Petition can never be guaranteed to work, so a detailed review of both options should be explored before preparing a Petition. The costs associated with filing a Heggstad Petition are substantially less than that of a full probate. Therefore, if the court approves the California Heggstad Petition request, the estate has not only saved thousands of dollars, but is also ready to be distributed quickly. On the other hand, if the court denies the Heggstad Petition, the estate has lost the fees and costs associated with the filing and further, will incur additional costs to proceed with a full probate, and further delay of distribution for an additional 7-10 months.

Heggstad Petition Form

There is no official Heggstad Petition form, however, the content of the Heggstad Petition typically includes the following information:

  1. Information about the acting trustee and the trust document.
  2. The date of death of the trustor and the confirmation of the intent of the trustor when it was signed.
  3. A description of the assets to be confirmed as part of the trust that were not formally titled into the trust prior to death.
  4. A copy of the death certificate of the Trustor.
  5. Information concerning the decedent’s residence.
  6. The names, addresses and ages of all beneficiaries.
  7. A detailed description of the relief being requested.

Approved Heggstad Petition Establishes Asset as Part of Trust

The Heggstad Petition seeks to obtain a Court judgement that confirms that an asset held in the deceased person’s name is actually owned by the trust, and therefore controllable by the acting Trustee. In the end, the Heggstad Petition process verifies, among other facts, that a trust was created and that the creator of the trust was in the process of transferring title of his or her property into the name of the trust before his or her death.

For assistance in filing a California Heggstad Petition, contact A People’s Choice. We have helped many estates successfully complete the Heggstad Petition process.

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By | 2018-01-18T15:47:28+00:00 July 23rd, 2015|Probate|15 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

15 Comments

  1. valerie December 23, 2016 at 6:39 am - Reply

    Hello,

    What do you charge to prepare a Heggsted Petition?

    Thanks,
    Valerie Scott

    • Sandy McCarthy December 23, 2016 at 3:31 pm - Reply

      Our current fee to prepare a HEGGSTAD petition, including notice of hearing and proposed Order is $1250. We also facilitate filing the documents with the court and set and notice the hearing. Please contact us for further information at 800-747-2780. I will also email you these details.

      • Tyler Willows January 19, 2017 at 4:21 am - Reply

        Sandy, this was a great article. Thank you for the value of this, I had no idea.

        I am curious to know if a Heggstad petition, or some other means, could be used to take a home OUT of a Living trust, post-humous, in order to re-finance to satisfy a reverse mortgage note due clause, to prevent the foreclosure of a home that was a possessory interest was given, to a disabled women via a “life estate”.

        • Sandy McCarthy February 10, 2017 at 12:07 am - Reply

          That is an interesting question that would have to be directed to an attorney for a legal analysis and response. Let me know what they say!

  2. Bob April 28, 2017 at 3:02 am - Reply

    Is a Heggstad petition necessary when a pour over will places all property into the trust

    • Sandy McCarthy April 28, 2017 at 3:14 am - Reply

      A pour-over will would need to be “probated” to get the trust-omitted asset to the beneficiary (the trust). The purpose of a Heggstad Petition is to circumvent having to file a long drawn out probate case and utilize a different, faster route to transfer the property into the trust. We can assist you with either proceeding and can save the estate a substantial amount as compared to hiring an attorney. Give us a call at 800-747-2780 for more information.

  3. Barnesa Chatterfield June 13, 2017 at 2:03 am - Reply

    We are in need of a Heggstad petition to be filed. My mother left a living trust which days the property in the schedule of assets however in January 2017 my mother refinance the property and failed to transfer deed to the trust. My mother was dealing with a very serious illness that succumbed her to pass away. The home had previously been deeded to the trust several times. I have contacted a few attorneys and the cost is over $5000. What do you charge for this? What does your charge include ?

    • Sandy McCarthy June 13, 2017 at 2:06 am - Reply

      Our fee is $1250 plus court costs. We would be happy to help you. Please call 800-747-2780.

  4. Lisa Rosado November 30, 2017 at 6:05 pm - Reply

    Hello Sandy,
    My step Dad past away, my Mom is still alive in a private care facility but due to a stroke is unable to make decisions for herself. I am her appointed Power of Attorney. My dad took the house out of the trust to get a line of credit, the house is in his name only my question is….how do we put the house in her name so we can sell it to continue paying for her care?
    Lisa

    • Sandy McCarthy November 30, 2017 at 6:11 pm - Reply

      Hi Lisa – If the house is only in your dad’s name then you probably will need to file some type of probate proceeding quickly so that the property can be transferred back into the trust before your mom passes. Give us a call at 800-747-2780 if you want to proceed with this matter. You probably should do something sooner than later as once your mom passes it will be much messier to resolve this dealing with two deaths vs. just one.

  5. Apryl December 1, 2017 at 10:34 pm - Reply

    If the property that needs to go into the trust is in Los Angeles County, but the trust administrator and person requesting the Heggstad Petition is in Kern County, what county does the petition need to be filed in?

    • Sandy McCarthy December 2, 2017 at 5:13 am - Reply

      I believe the same jurisdictional and venue rules should apply to a Heggstad Petition as to a probate filing.

  6. Amelia January 2, 2018 at 11:20 am - Reply

    We were told that a Heggstad Petition could not be filed for my father-in-law’s unfunded revocable living trust since one of the children is currently under age 18. Is this true? Is there an exception for adoptive children? My mother-in-law is so distressed about having to go through full probate.

    • Sandy McCarthy January 3, 2018 at 5:04 am - Reply

      Amelia – I am not aware of any such criteria but more importantly, the facts leading up to why the trust was not funded properly is critical in the court making its determination in these matters. We have had a substantial amount of experience filing both Heggstad Petitions and full probates. It would be best if you could call the office so we could get a bit more information. Filing a Heggstad is a great option but in our experience, only if the facts are there to support the judge granting the request. In our experience, who the beneficiaries are and their ages are not factors under the Heggstad statutes. There is a risk, however, a Heggstad Petition could be denied if you cannot show inadvertence and clear evidence of the decedent’s intent. Filing probate, on the other hand, does NOT have to be scary or expensive. We can explain how both processes work to make sure you have all the information necessary to make a well-thought through decision about which process would be best for you. You should also seek legal advice from an attorney if you need direction regarding which process may be better for your situation. Either way you go, we can help!

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