The House Never Made It Into the Trust. Now What?
You're going through Mom's papers. The living trust is there, signed and notarized. Then the title report comes back, and the house is still in her name, not the trust's. Someone tells you that means probate.
Maybe not. In California, there's often a shorter fix called a Heggstad petition.
Don't open a probate case yet
Probate is slow and expensive, and once it's started it's hard to turn around. Before anyone files anything, have an attorney look at the trust file. Sometimes the paperwork already did the work and nobody noticed.
What to pull together first
The trust, plus any amendments.
The schedule of assets attached to the trust (often called Schedule A).
Any general assignment your parent signed with the trust.
The current deed or a recent title report for the house.
Statements for any accounts still in your parent's name.
Can't find some of these? Call the attorney who drafted the trust. Their file often has copies.
What the court is looking for
The court wants written proof that your parent meant the house to be in the trust. The best proof is the house listed on the trust's schedule of assets. A signed general assignment can help too, even when the schedule is missing or incomplete. The paperwork doesn't have to be perfect. It does have to exist.
How the process usually goes
I review the trust, the schedule, the assignment, and the title.
If there's enough to work with, I prepare a petition under California Probate Code section 850 and file it with the Riverside County Superior Court.
Heirs and beneficiaries get notice before the hearing.
If nobody objects, the judge signs an order confirming the house belongs to the trust.
The order gets recorded with the county, and the successor trustee can sell or transfer the house like any other trust property.
Timing depends on the court's calendar, but it's usually a few months, not the year or more a full probate takes.
When it isn't a quick fix
If an heir or beneficiary objects, the petition turns into a contested case and stops being simple. And if nothing in writing ties the house to the trust, there may not be enough to file. A pour-over will by itself doesn't avoid probate, though it's still worth a look.
Check the other accounts, too
Bank and investment accounts sometimes name a payable-on-death beneficiary or have a surviving joint owner. If so, they may pass to that person with no court involvement at all. Check that before assuming anything needs a petition.
If it's your own trust
If you set up a trust and never moved your home into it, that's an easy fix while you're alive. A new deed recorded now saves your family this whole process later.
Found an asset that never made it into a parent's trust? Read more about Heggstad petitions, or book a complimentary consultation and send me the trust and the deed. I'll tell you straight whether this is an option.
