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What is a Heggstad Petition
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Heggstad Petition

The Heggstad Petition transfers property from an individual’s estate to their trust upon their death. It applies where the decedent intended to transfer property before their death but did not do so. It helps to skip probate. For guidance on Heggstad Petitions and using the California Probate Code 850 provision, call California probate and trust attorney Hess-Verdon at (949) 706-7300.

Heggstad Petition Overview

A probate process is typically required before the property gets transferred to the beneficiaries. However, if you live in California, you may be able to bypass the probate process by filing the famous Heggstad Petition. The latter only works if you wished to place those assets in a trust, and you can prove that to a judge. 

What is Heggstad Petition? 

Sometimes the trust creator overlooks specific properties or fails to transfer every asset into the trust. Heggstad petitions apply to real estate or assets that the deceased intended to include in a living trust but failed to do so for various reasons.

Probate Code 850

California probate Code 850 permits a simple Heggstad Petition to bypass the lengthy and costly probate process. Even if the property title is not legally or formally transferred into the trust, the petitioner can have the court to declare that the asset is part of the trust. 

In some cases, the property included in a trust-or intended to be moved to the trust-is mentioned on the deceased’s estate plan documents. That serves as part of the proof. 

California Probate Code Section 850 and Heggstad Petitions 

In California, Heggstad petitions are governed by probate Code Section 850, which permits trustees, personal representatives, beneficiaries, or other interested parties, to file the probate-skipping petitions. You can file your Heggstad petition in any probatecourt in California probate. It should specify the facts that support it. 

Why file an 850 Petition? 

Hess-Verdon trust and probate attorneys can help a trustee, beneficiary, or other interested parties file this petition in California. Heggstad petitions describe how the decedent desired certain assets or properties to be included in their trust before passing away. 

California residents use the Heggstad Petition for several reasons, including: 

  • Inexplicable circumstances, such as declining health, prevented the decedent from transferring the property.
  • Although they initiated the transfer process, the decedents passed away before the process was complete.
  • The property did not successfully get transferred. A failed transfer might have been caused by inadequate documentation or other issues.
  • There was an error in the paperwork for transferring property to a trust.
  • There was no knowledge that the trust had to change property title.
  • Because of ailment or incapacitation, the decedent could not transfer the property into the trust.
  • Due to an extenuating circumstance, the property was taken out of the trust for refinancing. 

How Does the Heggstad Petition Work? 

The petitioner should do everything per the requirements of probate Code 850. This is how it goes: the process begins with filing a verified petition that includes all the facts, mentions the assets in question, and details the addresses of the people entitled to receive notice of the petition. The clerk will set hearings after you file the petition. 

The law requires that you issue all interested parties a 30-day notice when you file a probate Code 850 petition. It usually takes a few days to prepare and file an 850 Heggstad Petition, and a court typically hears and rules on the petition within 60 days, which is much less time than it usually takes to complete a probate. 

To ensure that your Heggstad petition is successful, you will need to prove that the deceased had a plan or intention to move the assets to a trust.

In the original Heggstad case, an inheritance property was to be placed into a trust for the beneficiaries of the Heggstad estate. At the hour of their death, the property had not yet been transferred to the trust. 

Nonetheless, he had a compiled a list of all the properties he wished to include in his trust in the form of a schedule. According to a California court, Mr. Heggstad’s schedule was sufficient to prove his intent. Accordingly, the trust obtained ownership of the property, and that saved his estate from probate. 

Therefore, it is essential to have/find/prove a detailed schedule of assets when filing the Heggstad Petition. Intent, however, can be demonstrated in many other ways. A trust declaration may include documentation, depending on its language, that shows plans of moving certain assets to it. 

If you want to file an 850 Heggstad petition, you can consult with an experienced probate lawyer. You typically need to have the following in your petition: 

  • Information about the decedent and the trust document
  •  The deceased’s will or other documents that prove their intent
  •  A description of the assets at issue
  •  Details on the beneficiaries

Because every family situation is different and no two Heggstad petitions are the same, accompanying your petition with the below documents may help your case: 

  • The decedent’s trust deed
  • Their schedule-of-assets for the trust
  • Other relevant estate information

If additional information is needed to file an 850 petition, your attorney will confirm it with a review of your family’s circumstances. The filing intends to obtain a court judgment that the owner or trust creator wanted, planned, or wished to move the assets in the trust, and so they belong in the trust and not their probate estate. 

Advantages and Disadvantage of an 850 Petition 

Heggstad petitions are never guaranteed to be successful, so parties should compare the pros and cons versus probate. In contrast to full probates, Heggstad petitions are significantly less expensive. The estate benefits from thousands of dollars in savings and gets to distribute property quickly if the court approves the petition request. 

However, if the court denies the Heggstad petition, the estate would be forced to spend additional funds to file for complete probate and a further delay of 7-10 months before distribution could occur. 

Heggstad Petitions: Do I Have the Right to Object? 

Absolutely. You could contest an individual’s Heggstad Petition in a California court, citing that the decedent had no intention of transferring the property. When an objection is filed, the chances of the Heggstad Petition being granted are less. Probate and trust litigation attorney Hess-Verdon specializes in probation fiduciary trust law in California. For more information about the Heggstad Petition and whether it can work for you, call us at (949) 706-7300.

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What are some reasons a family trust can be contested?

A Family Trust, which includes a revocable and irrevocable Trusts are contestable. When the Successor Trustee has taken over, there is an allotted time that beneficiaries have to contest the Trust. Make sure you are within your time limits to fight the Trust. A Trust Attorney can help you, at a minimum, understand your next few steps. It’s highly advisable to be “reasonable” throughout the process to ensure you stay on the right side of the courts. 

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