Heggstad Petition Attorney

What a Heggstad petition actually is

It asks the probate court to confirm that an asset already belongs to a trust, even though the title was never formally moved into it.

The name comes from a 1993 California Court of Appeal case, Estate of Heggstad. A man created a living trust and attached a schedule listing his real property, but he died before recording a deed transferring one parcel into the trust. The court held that the schedule was enough to show he intended that property to be trust property. The statute behind the petition is California Probate Code section 850.

Notice how narrow the question is. The court is not deciding who should get the house. It is deciding whether the house was already in the trust on the day your parent died.

What you are avoiding

If the answer is yes, you are not in probate. It is worth being blunt about what that saves you, because full probate is slow and expensive in a way that blindsides families.

The time. Plan on a year. Often longer. The court's calendar sets the pace, not you, and nothing gets distributed to anyone until it is finished. If your family needs to sell the house or reach the money, your family waits.

The expense. This is the part that stuns people. The attorney's fee in an ordinary probate is set by California statute on the gross value of the estate, not on the equity. A home worth far more than what is left after the mortgage is still charged on the full value. The mortgage does not reduce it, and neither does anything else that was owed. On top of that, the estate's representative is entitled to that same statutory fee, and extraordinary work can be billed on top with the court's approval. Here is how probate cost actually works.

The privacy. Probate is a public court file. Anyone who cares to look can see what your parent owned and who ended up with it.

A Heggstad petition is a different animal. One petition, the legal notice the court requires to beneficiaries and heirs, and a hearing. It is normally far quicker than a full probate, there is no statutory fee calculated on the gross value of the house. Uncontested petitions are a flat fee, quoted up front before you commit. If someone objects or the matter becomes contested, we'll talk about cost before any extra work starts.

When the family agrees, this is about as good as the news gets after a death.

What the court is looking for

The court wants written evidence that your parent intended the asset to be in the trust. It does not have to be a recorded deed. The strongest versions look like this:

• The asset is named on the schedule of assets attached to the trust. This is the Heggstad situation itself, and it is the cleanest case you can bring.
• There is a general assignment signed alongside the trust that transfers property into it. A broad assignment like that can sometimes cover an asset the schedule never specifically named.
• Other writing points the same direction: the language of the trust itself, a deed, account records, or the estate planning file the drafting attorney kept.

The paperwork does not have to be perfect. It has to be documented.

The same fix covers more than the house

Most people land on this page because of a home, but the same petition reaches a bank account, a brokerage or investment account, shares of stock, and other personal property that never got moved into the trust.

What the court is weighing is the same either way: written evidence of what your parent intended. A general assignment covering personal property can support bringing an account or shares of stock into the trust, even where that particular asset was never listed by name.

So if the trust was never funded at all, don't treat the accounts as a separate problem. We look at everything together.

One honest caveat before anyone files anything. If an account already names a beneficiary on a payable on death form, or there is a surviving joint owner, it may pass outside probate on its own and need nothing from a court. That is worth checking first, and it is the kind of thing I will tell you on the phone for nothing.

When it is harder than that

I would rather tell you this now than after you have paid me.

• Someone objects. A beneficiary or heir who disputes it turns this into contested litigation, and it stops being a quick fix.
• The written evidence is thin. If the trust is vague, the schedule is missing, and there is no general assignment, there may not be enough to hang a petition on.
• A pour-over will is not a shortcut. It directs assets into the trust, but it does not avoid probate by itself. People are often surprised by that one.

Whether you have a case usually comes down to what is sitting in the file. Send it to me and I will tell you straight.

Get a second look first

If you have been told you need to probate a house that your parent clearly meant to put in their trust, have someone read the file before you open a probate case. It is a short, complimentary conversation. Sometimes the paperwork already did the work and nobody noticed.

And if you are reading this because you have a trust of your own that you never finished funding, that is fixable while you are alive, which is far easier than fixing it afterward. Start here.

What probate actually is

Probate is the court process for transferring what someone owned after they die, when there's no living trust already handling it. It confirms the will, pays debts and taxes, and moves what's left to the right people. In California it usually takes close to a year, and the attorney fee is set by law as a percentage of the estate, not something we set ourselves.