The Heggstad Petition: California’s Best-Kept Secret for Avoiding Probate

By Codi M. Dada, Estate Planning & Probate Attorney | Novato, CA

You did everything right. You worked with an attorney, created a revocable living trust, and signed all the right documents. You breathed a sigh of relief knowing your family would be protected when the time came.

But then something happened that nobody warned you about, the assets never made it into the trust.

This is one of the most heartbreaking situations we see at Codi M. Dada Law Offices. A family comes to us after losing a loved one, assuming the trust will protect them from probate, only to discover that bank accounts, real estate, and investment portfolios were never retitled in the trust’s name. Suddenly, what was supposed to be a smooth, private transfer of wealth turns into a lengthy and expensive court process.

But here’s the good news: California law offers a powerful remedy called the Heggstad Petition — and it can save your family thousands of dollars and months of heartache.

What Is a Heggstad Petition?

The Heggstad Petition gets its name from the landmark 1993 California case Estate of Heggstad, 16 Cal. App. 4th 943. In that case, the court held that a trust schedule — a list of assets the decedent intended to place in the trust — was sufficient to establish the trust’s ownership of those assets, even without formal retitling.

California later codified this principle under Probate Code § 850, which allows a successor trustee to petition the court to transfer assets into a trust without going through full probate — as long as there is clear evidence that the decedent intended for those assets to be part of the trust.

In plain English: if your loved one meant for an asset to be in the trust, a Heggstad Petition can get it there — quickly and affordably.

Why Does This Happen in the First Place?

Unfunded or partially funded trusts are far more common than most people realize. Here are the most frequent reasons assets end up outside a trust:

• The trust was created, but funding was skipped: Many people sign their trust documents and assume the job is done. In reality, assets must be formally retitled into the trust’s name — a separate process that is often overlooked.
• Assets were acquired later: A new home, an inherited account, or a newly opened investment portfolio may never have been transferred into the trust.
• Paperwork errors by institutions: Sometimes clients do everything right, but a bank or brokerage firm fails to properly retitle the account.
• Lack of post-execution attorney guidance: Not all estate planning attorneys offer full-service trust funding assistance, leaving clients to navigate a complex process on their own.

Whatever the reason, the result is the same: assets outside the trust must typically go through probate — unless you pursue a Heggstad Petition.

What Is Probate — and Why Do You Want to Avoid It?

Probate is the court-supervised process of validating a will and distributing a deceased person’s assets. In California, it is notoriously slow, expensive, and public.

Under California Probate Code § 10810, statutory probate fees are set by law and calculated based on gross asset value (without deducting mortgages or debt). Both the attorney and the executor are entitled to these statutory fees:

• 4% on the first $100,000
• 3% on the next $100,000
• 2% on the next $800,000
• 1% on the next $9,000,000

For a $1 million estate, combined statutory fees for both the attorney ($23,000) and executor ($23,000) equal $46,000. For a $2 million estate, that combined number climbs to $66,000 — before factoring in court costs, probate referee appraisal fees, or extraordinary attorney fees.

A Heggstad Petition, by contrast, is typically resolved in a matter of weeks at a fraction of that cost.

How Does the Heggstad Petition Process Work?

1. Case Evaluation: We review the trust documents, asset records, and evidence of the decedent’s intent — including trust schedules, general assignments of assets, correspondence with financial institutions, and account statements.
2. Petition Preparation: We draft a petition under Probate Code § 850 asking the Superior Court to confirm that the assets belong to the trust. The petition includes supporting declarations and formal evidence.
3. Filing & Hearing: The petition is filed with the probate court in the county where the decedent resided. A hearing is scheduled — typically within 4 to 8 weeks — where the judge reviews the petition.
4. Court Order: If granted, the court issues an order confirming the assets as trust property. That order is then presented to banks, title companies, or transfer agents to retitle the assets, bypassing full probate entirely.

Who Qualifies for a Heggstad Petition?

A Heggstad Petition is most likely to succeed when:

• A valid trust exists: The decedent executed a valid revocable living trust during their lifetime.
• There is clear written evidence of intent: A written record proves the decedent intended for the specific asset to be held in the trust. Strong evidence includes:
  • A formal trust schedule or general assignment of assets listing the property.
  • Written correspondence with a financial institution requesting a transfer.
  • Attorney notes or drafting records documenting the intent to transfer the asset. (Note: A standard pour-over will alone stating “I leave everything to my trust” is generally insufficient without an accompanying lifetime document or schedule identifying the asset.)
• The assets are clearly identifiable: The petition identifies the specific bank accounts, stocks, or real property in question.
• No active ownership disputes exist: There are no competing ownership claims or complex creditor actions challenging the trust’s right to the asset.

Real-World Example: How a Heggstad Petition Saved One Marin County Family

(Names changed to protect client confidentiality)

A Novato family came to us after their mother passed away. She had created a revocable living trust fifteen years earlier — but her primary residence and a brokerage account worth $850,000 had never been formally retitled into the trust’s name.

Without intervention, the family faced full probate. Based on statutory fees ($40,000 combined for attorney and executor) plus court costs and probate referee appraisals, total expenses would exceed $50,000, with a timeline of up to 18 months.

Instead, we filed a Heggstad Petition. Her trust documents included a detailed schedule of assets she intended to transfer, alongside a signed general assignment. The court granted the petition in six weeks. The family avoided probate entirely, saved over $45,000, and transferred the home and account directly to the trust.

What If a Heggstad Petition Isn’t an Option?

If evidence of intent is lacking or the trust document has validity issues, other simplified paths may apply:

• Small Estate Affidavit: For estates valued below the California statutory threshold under Probate Code § 13100 ($208,850 for deaths occurring on or after April 1, 2025).
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• Spousal Property Petition: A streamlined process for assets passing directly to a surviving spouse.
• Summary Administration / Petition to Determine Succession: For qualifying low-value real estate or personal property.
• Full Probate Administration: Pursued when no simplified alternatives apply.

The Lesson: Don’t Let a Funded Trust Go Unfunded

The Heggstad Petition is a crucial legal remedy, but the best approach is avoiding the need for one altogether.

• Review trust funding annually: Audit major bank accounts, real estate titles, and investment portfolios every January.
• Update titles when acquiring new assets: Ensure new real estate or financial accounts are established directly in the trust’s name.
• Partner with a full-service estate planning attorney: Choose a firm that directly assists with asset titling and funding, rather than leaving the final steps unmanaged.

We’re Here to Help — Marin County and Beyond

Whether you are handling an unfunded trust after losing a loved one or want to ensure your current estate plan protects your family, the team at Codi M. Dada Law Offices is ready to guide you.

We serve clients throughout Marin County, Sonoma County, and the greater Bay Area with practical estate planning and probate counsel.

• Call us today: (415) 827-1425
• Website: www.dadalaw.com
• Office: 802 Grant Ave, Novato, CA 94945

This blog post is intended for informational purposes only and does not constitute legal advice. Please consult with a licensed California estate planning attorney regarding your specific situation.

About the Author

Codi M. Dada is a California estate planning and probate attorney based in Novato, CA. He helps individuals and families throughout Marin County protect their assets, avoid probate, and plan for the future with confidence. Learn more at www.dadalaw.com.