What is a Heggstad Petition?

California Probate Code 850, also known as a Heggstad petition, is a judicial proceeding used to avoid costly and time-consuming probate proceedings by petitioning the court to transfer property that should have been titled in the name of a trust (but was not) into said trust after the decedent has already passed away. Before attempting to file a Heggstad petition on your own, it is highly advisable to consult a trust, estate, and probate attorney in California. California’s probate laws are extremely complex, with little to no room for error. An experienced attorney can evaluate your unique circumstances to establish whether a Heggstad petition is an available option for you and what your chances of succeeding are.

Estate of Heggstad

In the namesake case, Estate of Heggstad, the decedent executed a valid, revocable trust naming himself as trustee and his son as successor trustee. Est. of Heggstad, (1993) 16 Cal.App.4th 943. The decedent included several real properties in his schedule. He then removed one particular property from the trust to refinance it but “there was no grant deed reconveying this property to himself as trustee of the revocable living trust.” Id. at 946. Failure to title a property to the trust would typically make the property subject to the time-consuming and expensive probate process. However, the court found that “[t]he issue of whether the property belonged to a living trust or whether it should be probated in decedent’s estate are opposite sides of the same coin, and it is a fruitless exercise in semantics for appellant to argue that the probate court may only decide this issue as part of its administration of the decedent’s estate.” Id. at 952. Indeed, the court allowed the excluded property to be transferred to the trust after death based on the fact that the decedent had clearly intended for the property to be a trust asset.

How Does a Heggstad Petition Work?

An experienced trust litigation attorney will first file an 850 petition with the probate court. The probate court will evaluate your particular scenario to see if it fits within the guidelines of a Heggstad petition. In particular, the court will be looking at whether the decedent intended for the assets or property to be included in the trust. Decedents may become incapacitated or passed away before retransferring the property into trust or they may have mistakenly believed that the property had been properly transferred into the trust. In these situations, the court will look for evidence suggesting that the property was intended to be included in the trust. For example, in Heggstad, the court found that the decedent’s schedule of assets listing the property as belonging to the trust was enough to prove intent. A successful Heggstad petition will then result in a judgment from the court establishing that the property in question is indeed part of the trust. A trustee may then manage the trust as usual without the need for probate.

What are the Requirements of a Successful Heggstad Petition?

Heggstad established that “there must be a competent trustor, trust intent, trust property, trust purpose, and a beneficiary” to create an express trust and went on to explain that there are two basic requirements for a Heggstad petition. . Est. of Heggstad, (1993) 16 Cal.App.4th 943, 947. First, a successful Heggstad petition requires “that the owner of real property is the settlor creating the trust with himself or herself as the trustee . . . Second, because a conveyance of real property is at issue, the other requirement for transferring real property to a trust is compliance with the statute of frauds.” Ukkestad v. RBS Asset Fin., Inc., (2015) 235 Cal.App.4th 156, 160.
To fulfill the first requirement, a “settlor can manifest his intention to create a trust in his property either by: (a) declaring himself trustee of the property or (b) by transferring the property to another as trustee for some other person, by deed or other inter vivos transfer or by will.” Est. of Heggstad, (1993) 16 Cal.App.4th 943, 947–48. The second requirement must be fulfilled by successfully complying with the statute of frauds.
If both of the requirements for a Heggstad petition are met, then “real property may be made part of a trust’s assets without a separate deed transferring property to the trust.” Ukkestad v. RBS Asset Fin., Inc., (2015) 235 Cal.App.4th 156, 160, citing Est. of Heggstad, (1993) 16 Cal.App.4th 943, 947–50. In other words, a Heggstad petition may be successful if both requirements are met.

Contact a California Trust, Estate, and Probate Attorney Today

Ensuring that all assets are transferred as intended by your loved one is of utmost importance. However, it is not uncommon for miscommunications to arise. The trust, estate, and probate attorneys at Talkov Law can help ensure that your loved one’s wishes are properly executed and in accordance with all applicable laws. The attorneys at Talkov Law can help you understand Probate Code 850, better known as a Heggstad petition. For a free, 15-minute consultation with the trust and probate administration attorneys at Talkov Law, contact us online or by phone at (844) 4-TALKOV (825568).

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