“Wait: That Asset Wasn’t in the Trust?” What Families Discover Too Late, and What You Can Do About It.
By Codi M. Dada | Dada Law Offices | Novato, California
One of the questions I get asked more than almost any other is some version of this:
“My mom had a trust. She was so organized. She did everything right. But now we’re finding out her bank account, or her house, wasn’t actually in the trust. How did this happen? And what do we do now?”
I hear this story all the time. And the first thing I tell people is: you are not alone, and this is not the end of the road.
Let’s talk about what’s really going on, and what your options are.
Why Does This Happen So Often?
Here’s the thing about living trusts that most people don’t realize: creating the trust is only half the job.
The other half is called funding the trust, meaning you actually have to transfer your assets into the trust’s name. You have to retitle your house, change account ownership, and update beneficiary designations. It’s a process, and life gets in the way.
Think about how many things happen after someone creates their trust:
- They refinance their home and the lender temporarily takes it out of the trust, and nobody puts it back.
- They open a new checking account at a different bank and never change the title.
- They buy a rental property and assume their attorney will handle the paperwork, but it never gets done.
- Their original estate planning attorney retires, and there’s nobody watching the plan.
None of this means your loved one failed. It means they were human. It means life happened. And unfortunately, it means you might be looking at a problem that feels a lot bigger than it actually is.
“Does This Mean We Have to Go Through Probate?”
This is always the follow-up question. And I understand why, because probate has a reputation. People have heard the stories: a year or more of waiting, attorney fees, court filings, and the whole estate laid out in a public record for anyone to see.
Here’s what I tell my clients: maybe not.
California law gives us some very powerful tools to deal with exactly this situation, and in many cases, we can resolve it without going through full probate at all.
Two of the most important tools are the Heggstad Petition (a petition under California Probate Code § 850) and the Spousal Property Petition (under Probate Code §§ 13500 and 13650).
Depending on your specific situation, one of these may be exactly what you need.
The Heggstad Petition: When Intent Is the Evidence
The Heggstad Petition comes from a 1993 California case, Estate of Heggstad, that set a powerful precedent. The idea is straightforward: if we can show the court clear and convincing evidence that your loved one intended for an asset to be in the trust, the court can confirm that it belongs there, even if the paperwork was never completed.
What counts as evidence of intent? Things like:
- A schedule of assets attached to the trust document that lists the property
- Language inside the trust itself indicating ownership
- A certification or letter referencing the asset as part of the trust estate
I’ve handled many of these petitions. When the evidence is there, this is a clean, efficient process, and it can save families from a full probate proceeding that would otherwise cost them tens of thousands of dollars and more than a year of waiting.
The honest truth? When I first review a file, one of the first things I’m looking for is whether we have enough to file a Heggstad Petition. Because if we do, that changes everything.
If the person who passed away was your spouse or registered domestic partner, California law gives you a separate and powerful right.
The Spousal Property Petition: A Specific Right for Surviving Spouses
California is a community property state. That means most of what you and your spouse built together during your marriage, such as your home, your investments, and your savings, you already own half of. It was never solely your spouse’s to give away or probate.
The Spousal Property Petition asks the court to confirm two things:
- That your half of the community property is already yours, with no probate needed.
- That your spouse’s half passes directly to you, again without full probate administration.
The result is a court order that clears title and puts everything in your name. It’s faster, less expensive, and far less stressful than traditional probate.
I want to be clear about something: this is not a loophole. This is California law doing exactly what the legislature designed it to do: protecting surviving spouses from unnecessary court proceedings during an already difficult time.
“Okay, But Is It Too Late For Us?”
No. Probably not.
One of the biggest misconceptions I encounter is that if someone has been gone for a while, whether months or even a year or more, these options are off the table. That’s not true.
There is no hard deadline for a Heggstad Petition or a Spousal Property Petition under California law. Yes, it’s better to act sooner rather than later, especially when you have property sitting in limbo. But if you’ve been putting it off because you didn’t know what to do, or because you assumed probate was the only option, it’s worth having a conversation before you assume the worst.
What the First Conversation Looks Like
When a new client comes to me with this kind of situation, here’s roughly how we approach it:
- Identify all non-trust assets: We identify every asset that may have been left outside the trust. We’re looking at everything, not just the obvious ones.
- Review trust documentation: We look at the trust document itself and any related paperwork for evidence of intent to support a Heggstad Petition.
- Determine legal relationships: We review family relationships. Was this a married couple or registered domestic partner? That opens the door to a Spousal Property Petition.
- Outline the strategy: We discuss which path makes the most legal and economic sense, providing a clear breakdown of timeline and costs.
My goal in that first conversation is always the same: I want you to leave understanding your situation better than when you walked in. No jargon. No scare tactics. Just a clear picture of where you stand and what your options are.
We Handle These Cases Routinely and Efficiently
At Dada Law Offices, trust administration, Heggstad Petitions, and Spousal Property Petitions are not edge cases for us. They’re a core part of what we do, and we do them often.
Experience translates directly into efficiency for our clients. We know what evidence courts look for. We know how to build the record. We know how to move these petitions through the system without unnecessary delays.
We serve families throughout Marin County and the greater Bay Area: Novato, San Rafael, Mill Valley, Tiburon, Sausalito, Corte Madera, Fairfax, and beyond.
If you’re dealing with a loved one’s estate and you’re not sure whether something was left out of the trust, or if you already know something was left out and you’re not sure what comes next, call us or schedule a consultation online.
You don’t have to figure this out alone.
Contact Dada Law Offices
Codi M. Dada, Attorney at Law
Estate Planning | Trust Administration | Probate | Heggstad Petitions | Spousal Property Petitions
Novato, California | (415) 827-1425
www.novatolawyers.com | novatolawyer@gmail.com
This article is for general informational purposes only and does not constitute legal advice. Every estate situation is unique. Please consult with a qualified California estate planning and probate attorney to discuss your specific circumstances.
