When a Loved One Forgot to Fund Their Trust: How a Heggstad Petition Can Save You from Probate
By Codi M. Dada | Dada Law Offices | Novato, California
You’ve just lost someone you love. You discover they had a living trust, and you breathe a small sigh of relief, knowing they planned ahead. But then you start gathering the assets and you find the problem: the house, the brokerage account, or the rental property was never actually transferred into the trust.
Now what?
For many California families, this situation leads to a dreaded word: probate. A lengthy, expensive, and public court process that can take a year or more and consume a significant portion of the estate. But there is often another way, and it’s called a Heggstad Petition.
What Is a Heggstad Petition?
A Heggstad Petition is a legal action filed under California Probate Code § 850 that asks the court to recognize that a specific asset belongs to the trust, even if it was never formally transferred into it.
The petition is named after a landmark 1993 California case, Estate of Heggstad, in which the court held that a declaration of trust, combined with a clear written statement of the settlor’s intent to place property in the trust, could be enough to establish that the property was part of the trust, even without a formal deed or transfer document.
In plain terms: if we can show the court clear and convincing evidence that your loved one intended for that asset to be in the trust, we may be able to get the court to confirm it belongs there without going through full probate.
Why Assets End Up Outside the Trust
Failing to fully fund a trust is more common than most people realize. It happens for many reasons:
- A home was refinanced and the lender required it to be taken out of the trust, and no one remembered to put it back.
- A new bank or brokerage account was opened after the trust was created.
- Real property was acquired later in life and the deed was never updated.
- The estate planning attorney handled the trust but not the deed work, or the client didn’t follow through on retitling assets.
- The original attorney passed away or retired, and the client didn’t know to update their plan.
Whatever the reason, the result is the same: an asset sits outside the trust and, upon death, it appears to have no mechanism to transfer without court involvement.
How the Heggstad Petition Works
A successful Heggstad Petition typically requires demonstrating:
- A valid, existing trust: Created and executed by the decedent.
- Written expression of intent: Such as a schedule of assets attached to the trust, a trust certification, a letter, or clear language within the trust document itself showing the decedent intended for the asset to be part of the trust.
- Clear and convincing evidence: Proof that the settlor’s intent was to include the specific property in the trust.
Once the petition is filed, the court reviews the evidence. If satisfied, the judge issues an order confirming that the property is, and was always intended to be, an asset of the trust. The trustee can then administer or distribute it just like any other trust asset.
No lengthy probate. No public inventory of assets. No waiting for the probate referee.
Is a Heggstad Petition Right for Your Situation?
A Heggstad Petition may be an option if:
- A loved one recently passed away with a trust in place, but one or more significant assets was left out.
- There is written evidence (a schedule, letter, or trust language) suggesting the decedent intended the asset to be in the trust.
- You want to avoid or significantly reduce the cost and time of a full probate proceeding.
- The estate is time-sensitive and you need a more efficient path to asset distribution.
This type of petition is not always available. If there is no written evidence of intent, the court may not be able to grant the relief. That’s why it’s critical to work with an attorney who knows how to build and present the evidentiary record effectively.
We Handle These Routinely
At Dada Law Offices, we have extensive experience filing Heggstad Petitions and other Probate Code § 850 petitions on behalf of California families. We know what evidence courts look for, how to gather and present it persuasively, and how to move through the process efficiently so you can focus on your family, not the courtroom.
We serve clients throughout Marin County and the greater Bay Area, including Novato, San Rafael, Mill Valley, Sausalito, and surrounding communities.
If you believe an asset was left out of your loved one’s trust, don’t assume probate is your only option. Contact us for a consultation and let us evaluate whether a Heggstad Petition can help you.
Contact Dada Law Offices
Codi M. Dada, Attorney at Law
Estate Planning | Trust Administration | Probate | Heggstad Petitions
Novato, California | (415) 827-1425
www.novatolawyers.com | novatolawyer@gmail.com
This article is intended for general informational purposes only and does not constitute legal advice. Every situation is unique. Please consult with a qualified California probate and trust attorney regarding your specific circumstances.
