What is a Heggstad Petition?

When a loved one passes away, families often discover that certain assets were never formally transferred into the family trust. Maybe a piece of real estate was left off the trust paperwork, or a bank account was overlooked during the estate planning process. In California, this kind of oversight does not automatically mean the asset must go through a full probate proceeding. A legal tool known as a Heggstad petition may provide a faster, less costly path to getting that property where it was always intended to go.

At Cava & Faulkner, Attorneys at Law, we help families in Elk Grove and throughout the Sacramento region navigate trust administration challenges, including situations where assets were accidentally left out of a trust. Below, we walk through how a Heggstad petition works, when it applies, and what families should know before pursuing one.

The Origin of the Heggstad Petition

The Heggstad petition takes its name from the 1993 California Court of Appeals case Estate of Heggstad. In that case, the court examined whether property that was listed in a trust’s schedule of assets, but never formally re-titled into the trust’s name, could still be treated as trust property after the grantor’s death.

The court ruled that the property could be considered part of the trust, even without a formal deed transfer, as long as there was clear evidence that the grantor intended the property to be held in the trust. The written schedule attached to the trust document served as that evidence.

This ruling opened the door for a streamlined court process under California Probate Code Section 850. Today, when families find themselves in a similar situation, they can file what is commonly referred to as a Heggstad petition to ask the court to confirm that certain assets belong to the trust.

How a Heggstad Petition Works

A Heggstad petition is filed with the probate court in the county where the decedent lived or where the property is located. The petition asks the court to determine that a specific asset, even though it was never formally transferred, is rightfully part of the trust.

The process generally involves the following steps. First, the trustee or an interested party files the petition under Probate Code Section 850. The petition must include supporting evidence showing that the grantor intended the asset to be part of the trust. This evidence often includes the trust document itself, any attached schedules listing the property, correspondence between the grantor and their attorney, and other written records that demonstrate intent.

After the petition is filed, notice must be given to all interested parties, including beneficiaries and any potential heirs who might have a claim to the property through probate. If no one objects, the court can grant the petition relatively quickly. If someone does object, the matter may require a hearing where both sides present their arguments.

Once the court grants the petition, it issues an order confirming that the asset belongs to the trust. The trustee can then use that court order to re-title the property, transfer accounts, or take whatever steps are needed to bring the asset under the trust’s management.

When a Heggstad Petition May Be Appropriate

Not every situation involving an unfunded trust asset qualifies for a Heggstad petition. The key question is whether there is sufficient evidence that the grantor intended the asset to be part of the trust. Some common scenarios where a Heggstad petition may be appropriate include the following.

The grantor listed the property on a schedule of assets attached to the trust document, but never completed a deed transfer or account retitling. The grantor signed a pour-over will that directs all remaining assets into the trust at death. The grantor made written statements, such as letters to their attorney or notes in their files, expressing intent to include the property in the trust.

On the other hand, if there is no written evidence of intent (if the property was simply never mentioned in any trust-related documents), a Heggstad petition is unlikely to succeed. In those cases, the asset would typically need to go through the standard probate process.

Heggstad Petitions vs. Full Probate

One of the primary reasons families pursue a Heggstad petition is to avoid the time and expense of full probate. In California, probate can take a year or longer and involves statutory attorney fees based on the gross value of the estate. For a home worth $600,000, for example, probate fees alone could exceed $15,000 for both the attorney and the personal representative.

A Heggstad petition, by contrast, is typically resolved in a matter of weeks or a few months. The costs are generally much lower than a full probate because the process is more targeted. Instead of administering an entire estate through the court system, the petition focuses on one specific question: Does this asset belong to the trust?

That said, a Heggstad petition is not always a guaranteed alternative to probate. If other interested parties contest the petition, the process can become more complex and time-consuming. And if the court finds that the evidence of intent is insufficient, the petition may be denied, and the asset may need to go through probate after all.

Evidence That Strengthens a Heggstad Petition

Because the success of a Heggstad petition depends on demonstrating the grantor’s intent, the quality and quantity of supporting evidence matter significantly. Courts look for documentation that clearly ties the asset to the trust. Strong evidence typically includes a schedule of assets attached to the trust that specifically lists the property, a pour-over will that directs residual assets into the trust, correspondence between the grantor and their estate planning attorney discussing the property, financial records showing the grantor treated the asset as trust property, and any other written materials that reflect the grantor’s wishes.

Weaker evidence, such as verbal statements from family members about what the grantor wanted, may not be enough on its own. California courts generally want to see something in writing that connects the asset to the trust.

The Role of the Trustee in a Heggstad Petition

In most cases, the successor trustee is the person who files the Heggstad petition. After the grantor passes away, the successor trustee takes over management of the trust and is responsible for gathering trust assets, paying debts and expenses, and distributing property to beneficiaries.

If the successor trustee discovers that an asset was left out of the trust, they have a duty to take reasonable steps to bring that asset into the trust if possible. Filing a Heggstad petition is one of those steps. The trustee must act in the interests of the beneficiaries and follow the terms of the trust document, which typically includes ensuring that all intended assets are accounted for.

Trustees who are unsure whether a Heggstad petition is the right course of action should consult with an attorney who handles trust administration matters. Filing an incomplete or poorly supported petition can result in delays, additional costs, or a denial by the court.

Common Mistakes to Avoid

Families and trustees sometimes make errors that complicate or undermine a Heggstad petition. One common mistake is waiting too long to act. While there is no strict deadline for filing a Heggstad petition, delays can create problems: property values may change, records may be lost, and interested parties may become harder to locate.

Another mistake is failing to provide adequate notice to all interested parties. California law requires that certain people receive notice of the petition, and skipping this step can result in the court refusing to hear the matter.

Finally, some petitioners try to handle the process without legal guidance. While the concept behind a Heggstad petition is straightforward, the procedural requirements are specific, and the court expects filings to meet certain standards. Errors in the paperwork, insufficient evidence, or improper service of notice can all lead to a denied petition.

How California Courts Evaluate Heggstad Petitions

When a Heggstad petition comes before a judge, the court’s analysis centers on one fundamental issue: did the grantor intend for this asset to be held in the trust? The court will review the trust document, any attached schedules, and all supporting evidence submitted with the petition.

If the evidence is clear and no interested party objects, the court will typically grant the petition without a hearing. If there is an objection, the court will schedule a hearing and allow both sides to present their positions. The judge will then decide based on the evidence and the applicable law.

It is worth noting that different judges may weigh evidence differently, and the outcome of a Heggstad petition is never entirely predictable. However, cases with strong written evidence of the grantor’s intent have a much higher likelihood of success.

Cava & Faulkner Is Here to Help Your Family Move Forward

Dealing with trust administration after losing a loved one is stressful enough without discovering that property was left out of the trust. If your family is facing this situation, Cava & Faulkner, Attorneys at Law, can help you evaluate whether a Heggstad petition is the right solution and guide you through the process from start to finish.

We serve families throughout Elk Grove and the greater Sacramento area with trust administration, estate planning, and probate matters. Reach out to our office at (916) 831-7565 to discuss your situation and learn how we can help protect your family’s interests.