The Heggstad Petition Sounds Strange, But Helps A Lot Of People

There are a number of benefits to transferring homes and other real property into a California trust. But unlike many other items that can just be named in the trust, in order for real estate to be transferred into the trust, the official title, deed, recording, and other official documents must be executed and recorded, when real property changes ownership, as it does when it goes from you to your trust.

The Problem

Sometimes, mistakes happen—someone sets up a trust, clearly intends to include the real estate in the trust, but somehow, the real estate is never legally and officially transferred into the trust. This can be because of oversight, or a paperwork or clerical error, where the transfer is never fully effectuated.

Sometimes, the person makes the trust passes away before the real property transfer into the trust can be competed.

Other times, real property is transferred into the trust, then transferred out of it (for example, to  refinance, or for some other reason), and nobody gets around to putting the property back into the trust.

Now, the deceased has passed away, with a full estate plan keeping everybody out of probate…except for the home, an “orphan” of the estate, left in the cold, having never been transferred into (or back into) the trust. Now subject to probate, it seems like the efforts to avoid probate court have failed.

Enter the Heggstad Petition

But not so fast. California law allows an estate to file a quick petition with the court, called a Heggstad petition, to avoid this problem. If the court grants the petition, the real property is treated as if it was included in the trust, and treated that way, thus avoiding the probate process.

To get a Heggstad petition granted there usually must be some intent to have wanted to transfer the real property into the trust. So, for example, if there is a list of assets, or some writing where the deceased clearly meant for the real property to be included in the trust, that will suffice. Like so many things in probate court, the question will come to intent—did the deceased intend to include the real property in the trust, or is there some other reason why the real property was left out of the trust?

The Procedure

If you file a Heggstad petition, it can take around 60 days for the petition to be granted—but if the proper intent is there, and there are no challenges to the petition, it is not a complex process to get the petition approved.

Many times, trustees, realizing that they are supposed to have authority over an entire trust, and seeing that they don’t actually control the real property, will file the petition, but any interested party can also file.

Do you have a probate or estate law question or problem? Call the Torrance will and estate attorneys at Samuel Ford Law today.

Source:

calbar.ca.gov/portals/0/documents/legislation/2015/TE-2015-10-trustee_property_petition.pdf