Your loved one has passed and they had a living trust. Unfortunately you learn that one of their real estate properties was not under the name of the trust. You are faced with the decision – file a probate vs Heggstad petition. You may be surprised to learn that sometimes filling probate may be better than filing a Heggstad petition. This is in large part due to the varying opinions Judges can have when assessing a case and determining whether or not a Heggstad petition should be approved or denied. Clearly, a Heggstad petition should strongly be pursued if there is clear and convincing evidence to show that the property owner’s intent was to include it within his/her trust. Absent such proven intent however, filing probate may be better. Read on to learn more about filing under probate vs Heggstad.

Background of the Heggstad Petition

In the Heggstad case, Mr. Heggstad passed away with a trust. Some of his assets,  however, were not properly titled in his trust. Specially, Mr. Heggstad never transferred his home into his trust. Although he did not deed his home to his trust, he had a schedule of assets attached to his trust which specifically referenced and identified his home as being a trust asset. Because Mr. Heggstad had the home listed on his schedule of trust assets, the court held that because the real property in question was identified in the Trust’s attached Schedule, there was enough evidence presented to conclude the decedent intended to include his home in the trust.

Heggstad Petition Overview

A Heggstad petition arises from case law as a result of the story described above. In the California case known as the Estate of Heggstad, the court allowed the inclusion of specific assets into a trust after the death of the trustor.

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Typically, when a person dies with or without a will in California, his/her estate must be probated. However, if a person created a trust but failed to transfer his/her assets into the trust in time, under a Heggstad petition, the assets subject to probate could be transferred into the trust. This is when the issue of filing probate vs Heggstad petition comes into consideration. The key issue in cases involving a Heggstad petition is intent. An asset does not necessarily have to be included in the trust schedule of assets; however, there must be some credible documentation or proof that demonstrates the trust maker’s intent to include the real property asset in his/her trust. If the petition is successful, the asset can simply be transferred into the trust retroactive to the date of death and avoid a full probate.

A Heggstad petition is usually decided within less than 3 months from the date it is filed. When looking at filing a probate vs Heggstad Petition, filing a Heggstad petition is certainly shorter than the usual 7 to 12 months it takes to probate an estate.

Benefits of Probate vs Heggstad Petition

Unfortunately there is not much consistency with Judges approving or denying Heggstad petitions. Certainly, sufficient evidence must be demonstrated to prevail. Most Heggstad petitions are determined based on the clear and decisive “intent of the trust maker” to put the property in the trust. In many cases, having the property clearly listed and identified on the trust Schedule has been sufficient. However, there are some judges that read more into what “intent” is than others. For example, recently a client who hired us to file a full probate just had a Heggstad petition filed by their attorney denied. The property had been listed on the Trust Schedule but it had been over 15 years since the trust had been created. The judge who heard the case decided 15 years was more than enough time to allow the trust maker to put the property into the trust. This particular judge completely dismissed the fact that the property was actually listed on the Trust Schedules. This Judge’s determination of “intent” was random and arbitrary. The beneficiaries had spent thousands of dollars with an attorney to file a Heggstad Petition only to have it denied. Since they now had to file a full probate proceeding, they hired our office to save thousands of dollars in statutory attorney fees.

A Judge’s decision to approve or deny a Heggstad Petition is based on their opinion and assessment of intent. For this reason alone,  estate executors or administrators may find it “safer” to follow the standard probate process. It allows them to save time and money. Filing a Heggstad petition and having it approved is somewhat of  a gamble. Obviously, it becomes quite costly if a person files a Heggstad Petition only to have it denied; and then has to file a full probate. Depending on the value of the estate, an executor or administrator may be able to use simplified probate processes to save time and money.

Contact A People’s Choice for more information. Whether you need to file a full probate vs Heggstad petition, A People’s Choice is a great way get the required paperwork done and save money. Call us today at 800-747-2780.

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