Probate, trust, guardianship and inheritance litigation
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What Is A Heggstad Petition In California Probate?

By Andrew Gold, Esq.

A Heggstad petition in California probate is used when real property was not transferred into a trust before decedent’s death, but should have been.  The Heggstad petition allow the property to be transferred directly into the trust, instead of having to go through the lengthy probate process.  A successful Heggstad petition results in a judgment confirming the property at issue is part of the trust, even though it was not legally or formally transferred into the trust prior to death.

California Probate Code Section 850 Governs Heggstad Petitions

California Probate Code Section 850 governs Heggstad petitions and permits a personal representative, interested person, or trustee to file a petition.  Section 850 gives the filer the option to skip the probate process and simply file the Heggstad petition to get title of the property where it should be, and states, in part:

A trustee or any interested person may file the petition in any of the following cases:

(A) Where 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.

(B) Where the trustee has a claim to real or personal property, title to or possession of which is held by another.

(C) Where the property of the trust is claimed to be subject to a creditor of the settlor of the trust.

The Heggstad petition is filed in the California probate court and is required to set forth the facts upon which it is based.

Why Is It Called A Heggstad Petition?

The Heggstad petition got its name from the 1993 California probate case of Estate of Heggstad.  In the Heggstad case, the decedent owned an interest in real property.  Decedent made a schedule of assets identifying the assets that he wanted to include in the trust.   Decedent listed his interest in the real property.  Unfortunately, Decedent failed to correctly transfer the asset to the trust.

After Heggstad’s death, his family went to court and claimed that Heggstad intended to include the property in the trust.  The family relied on a schedule of assets prepared by the decedent that listed all the property decedent intended to transfer into the trust.  The schedule included the property in question.

The California probate court determined that the schedule of assets was enough to prove Heggstad’s intent.  The court titled the property in the trust without requiring probate proceedings.

When Is A Heggstad Petition Used?

The most common scenario for the use of a Heggstad petition is when a decedent fails to transfer assets into a trust, generally real property or a bank account.  Unfortunately, some trust creators forget this crucial step.

A Heggstad petition could be necessary because:

  • Decedent was ill and could not complete the transfer into the trust;
  • Paperwork was flawed resulting in a failed transfer
  • Decedent forgot to transfer the property
  • Decedent did not realize that the property needed to be transferred.

When Does A Heggstad Petition Work?

The most important part of the Heggstad petition is proving that the decedent actually intended to include the assets in the trust.  In Heggstad, a schedule of assets was sufficient.  Having a signed trust document is essential.

A 2015 case called Ukkestad v. RBS Asset Finance, Inc., summarized what is required for a successful Heggstad petition:

It is well established that if two specific requirements are met, real property may be made part of a trust’s assets without a separate deed transferring property  to the trust.

The first requirement is that the owner of real property is the settlor creating the trust with himself or herself as the trustee. (Heggstad, supra, 16 Cal.App.4th at pp. 947–950; see Prob. Code, § 15200, subd. (a) [stating that one way of creating a trust is “[a] declaration by the owner of property that the owner holds the property as 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. (Heggstad, supra, 16 Cal.App.4th at p. 948 [“Where the [*161]  trust property is real estate, the statute of frauds requires that the declaration of trust must be in writing signed by the trustee.”].) Specifically, the statute of frauds in Probate Code section 15206 states: “A trust in relation to real property is not valid unless evidenced … : [¶] (a) By a written instrument signed by the trustee … . [¶] (b) By a written instrument conveying the trust property signed by the settlor … . [¶] (c) By operation of law.” Accordingly, under the statute of frauds, “a written declaration of trust by the owner of real property, in which he names himself trustee, is sufficient to create a trust in that property … .”

Can I Object To A Heggstad Petition?

Yes.  The most common basis of objection to a Heggstad Petition in California probate is that the decedent did not intend to transfer the property. A Heggstad Petition is less likely to be granted if an objection is filed.

How Long Does A Heggstad Petition Take?

The entire process of the Heggstad petition takes between two and four months on average.  If filing a Heggstad petition is an option for your case, then filing the petition can avoid the cost and the time of going through the California probate process.

Andrew S. Gold, Esq.

Probate & Trust Litigation

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