It’s not uncommon for a decedent to fail to formally transfer all of their assets into a trust prior to dying. This may occur for a number of reasons. For assistance in filing a California Heggstad Petition, contact A People’s Choice. We have helped many estates successfully complete the Heggstad Petition process.
Reasons to File a California Heggstad Petition
- The person creating the trust forgot to transfer the property.
- The person died before the transfer was complete.
- The paperwork affecting the transfer is flawed.
- The person creating the trust did not know that the title of the property needed to be changed.
- The person removed the property from a trust for refinancing purposes, and due to an extenuating circumstance, never put it back.
In order to clear title to the property so that it can be sold, refinanced, or transferred to the rightful beneficiary, properties valued over $166,425 would usually require a full probate process.
Fortunately, California law allows for a shortened and much less expensive option for those in this situation. Sometimes, filing a Heggstad petition in California can even transfer the property directly to the beneficiaries without being fully probated.
History of the Heggstad Case
In the Estate of Heggstad case of 1993, Glen Heggstad had executed his trust and identified the items he intended to transfer, including his house, in a Schedule of Assets. However, Mr. Heggstad failed to formally transfer the house into his trust with the execution and recording of a grant deed prior to his death.
In response, the court ruled that having the assets listed on a Schedule of Assets attached to the trust would be sufficient proof that decedent Heggstad intended to include those assets in his trust.
Today, this rule of law has been expanded to include assets that may not necessarily be listed on a Schedule of Assets, assuming that the decedent has created other forms of written intent to include them in a 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 the 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 goal of filing a California Heggstad petition is to obtain a court order declaring that property listed on a trust schedule is a trust asset, despite that it was not formally transferred to the trust.
Heggstad Petition Procedure – The Process
A petition under Probate Code §850 is commenced with filing a verified petition stating the facts of the claim and the names and addresses of each person entitled to notice of the petition. After filing 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. Typically a Heggstad Petition can be prepared, filed and heard by a judge and finished within approximately 60 days, which is substantially shorter than the 7-10 months of a typical probate.
A Heggstad Petition must be filed with documentation that supports the petition and proves the unquestionable intent of the settlor to transfer the property into the trust as an asset. This is typically satisfied by attaching a signed Schedule of Assets that specifically identifies the property as inadvertently excluded from the trust.
Ultimately, the Heggstad petition seeks to obtain a court judgment that an asset 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 that a trust was created and 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.
Pros and Cons of Filing a Heggstad Petition
A Heggstad petition is never guaranteed to work, so parties should explore a detailed comparison of preparing a petition and a full probate.
There is substantially less cost associated with Heggstad petitions than full probates. Therefore, if the court approves the petition request, the estate has not only saved thousands of dollars, but property can also be distributed quickly.
On the other hand, if the court denies the Heggstad petition, the estate loses the costs of filing and will incur additional costs to proceed with a full probate, as well as a 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 petition typically includes the following:
- Information about the acting trustee and the trust document.
- The date of death of the trustor and confirmation of intent by the trustor upon date of signing./li>
- A description of the assets to be confirmed as part of the trust.
- A copy of the death certificate of the trustor.
- Information concerning the decedent’s residence.
- The names, addresses and ages of all beneficiaries.
- A detailed description of the relief being requested.
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My mother sign a trust but my uncle how was the Executor of the trust Fail to place the property deed in the trust before he died 3 years ago. He just recently resigned. That when we learned the trust was no funed and his advise is to don’t change it
Hello Yvette, We are not attorneys and cannot advise. You could try avvo.com for legal advice, and if you need probate paperwork prepared, please call the office on 800-747-2780.
Hello: My dad had a trust. He lived in Los Angeles County. He funded his trust with his house in Los Angeles County and other personal assets in 2015. In 2018 he bought a vacation home in San Bernardino County and titled it only in his name as an individual. He died in 2019. He has nothing listed on his schedule A but the trust itself says that all real property whether already owned or purchased in the future are to be part of the trust. 1. Is that sufficient language to qualify for an 850 Petition? And 2. can we file in LA county because the trustees live in LA county, so did my dad and the trust Adminsitration is LA county. Thank you.
Usually the court wants it mentioned in the Schedule so it would be a gamble. We could certainly help you with the paperwork!
My mother had We The People do her trust and she filled out the date on her deed to put in the trust the day before the date of the trust. She passed away I went to an attorney transfer her house to me and they told we couldn’t do it. The date on the deed is one day before the date of her trust. They told me I have to get a Haggstad petition.
It may be that you need a Heggstad Petition as your situation fits that option perfectly. We can certainly help you prepare the documents to complete that process at a much lower cost that an attorney would charge. Please reach out to us at 800-747-2780 for assistance.
My father wrote a will in 1991…he and my mother died in 2008 and 2010….One of my sisters who had a Power of Attorney, bought the last house for my parents with my parent’s money in 2005 and put her name on the title… In 2018 i finally saw the Will and saw that I was named as one and the last of the Executors of the Will…I went to court on another matter with my sister and the judge determined that my sister had abused her Power of Attorney by putting my parent’s property in her name…
My question is, will the Heggstad petition work in my case?
A Heggstad Petition is to put real property into an existing trust. I am not sure if that fits your situation. Either way, we can help you with Heggstad Petition documents or probate documents if you need to file either of those proceedings.
Hi. In my web search results that led me to this site there is a text snippet that mentions the possibility that a Heggstad petition may enable assets to be directly distrbuted to the beneficiaries, but I don’t see that info on this page?
Also…what is the filing fee for a Heggstad petition? Is it the same as the filing fee for a full probate?
The filing fee for a Heggstad is $435 for most courts. A heggstad petition seeks to transfer the nontrust assets to the trust.
My mom passed away and left a retirement (TSA) plan with my dad named as the beneficiary. She and my dad also drafted a Living Trust which named this particular asset on one of the schedules and she signed a letter (which I recently found as I was looking into this) naming the Living Trust as the beneficiary. When she passed away however, I completed the paperwork required to transfer the TSA into my dad’s name. However, we did not add me as the beneficiary. I guess it somehow fell through the cracks. I’m the only beneficiary on their living trust (the only child). Recently, my dad passed away and the financial institution is not honoring the Trust and the Pour Over Will and transferring the account to me. They are only willing to transfer this to my dad’s estate which does not exist since everything else is running through his now Irrevocable Trust.
Two Questions: 1. Is Heggscad Petition something worth pursuing? 2. If I hire your service to do the paperwork, do I still need to show up in court during the hearing or is everything handled by your office?
Thank you in advance!
A Heggstad may work but it is not black and white. If you hire our services there is one hearing you will need to attend. It is very straightforward however. Please call us for help at 800-747-2780.
Hi, I was wondering whether creditors of the decedent can impact whether a Heggstad Petition is approved?
I am not aware of that coming into play. The Heggstad process, if approved, merely puts the property into the trust.
How does the heggstad work with joint ownership and payable on death designations all favoring a former spouse?
A Heggstad petition is typically filed to ask the court to allow property to be put into a trust that was inadvertently NOT put into the trust. Since your question makes no reference to a trust I am not really sure what you are asking.
My father did a living trust in 2001 and he put his house in a trust. However we learned that he refinanced the home in 2004. He passed a way this year 2018. We believe that he did not know that he had to put the Home back in the trust because he showed me and my siblings trust 5 years ago. Is this a good case for a heggstead petition even though years have passed since he done it.
The problem with filing a Heggstad Petition is that there is no “guarantee” the judge hearing the case will approve the Petition. We can certainly help with a Heggstad petition (or a full probate if necessary) at a far less cost than an attorney. Unfortunately the path you decide to take is up to you. A probate is black and white with a known result. A Heggstad is not and us up to the judge hearing the case and deciding on the facts.
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.
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!
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?
I believe the same jurisdictional and venue rules should apply to a Heggstad Petition as to a probate filing.
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?
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.
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 ?
Our fee is $1250 plus court costs. We would be happy to help you. Please call 800-747-2780.
Is a Heggstad petition necessary when a pour over will places all property into the trust
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.
What do you charge to prepare a Heggsted Petition?
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.
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”.
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!