A Heggstad petition in California is the topic of this blog post.
A Heggstad petition is a petition that can be filed when an individual creates a revocable living trust and lists certain real or personal property in the trust document itself, or more commonly in an exhibit to the trust document, yet that individual fails to either notarize and record a Grant Deed transferring title of the real property into the revocable living trust, or they fail to sign any other documents that would transfer title to personal property into the revocable living trust.
If an individual’s property has been placed in a revocable living trust before their death, that property can be transferred directly to their heirs and beneficiaries upon their death without having to deal with the time and expense of a standard probate proceeding.
However in many cases the individual will fail to include all of their property in the trust before they die. When this happens the Heggstad petition may be available in California for property left outside of the trust. It should be noted that a Heggstad petition in California may not be granted unless there is an attached schedule or similar document attached to the trust document that lists a specific real property, bank account, vehicle, etc.
Advantage of a Heggstad petition in California.
The advantage of filing a Heggstad petition in California is that it is much faster than a standard probate proceeding which takes a minimum of seven months or more and costs up to 6 percent of the value of the property in the Estate. A Heggstad petition can be completed in two to three months in some cases, and also costs much less as it does not involve as much time and paperwork as a full probate proceeding.
A Heggstad petition is sometimes incorrectly referred to as a Heggstead, Hegstead, or Hegsted petition. The Heggstad petition is commonly known by that name due to the case entitled Estate of Heggstad (1993) 16 Cal. App. 4th 943, 951, in which a California Court of Appeal held that a written declaration of trust by the owner of real property that included an attached schedule listing a specific property was sufficient to create a trust in that property, and a transfer of title was unnecessary when a settlor declares himself or herself to be a trustee in his or her own property.
Heggstad petitions are sometimes filed under Probate Code § 17200, although Probate Code § 17200.1 states that, “All proceedings concerning the transfer of property of the trust shall be conducted pursuant to the provisions of Part 19 (commencing with Section 850) of Division 2” of the Probate Code.
Under Probate Code § 850(a)(3), a trustee or any interested person may file a petition when:
“The trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another;
The trustee has a claim to real or personal property, title to or possession of which is held by another; and
The property of the trust is claimed to be subject to a creditor of the settlor of the trust.”
A Probate Code § 850 petition may also include claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject matter of the 850 petition.
This proceeding may be used to seek a court order that property listed on a trust schedule, title to or possession of which was not formally transferred to the trust, is nevertheless a trust asset.
Personal property as well as real property may be the subject of a Heggstad petition in California.
An experienced attorney can evaluate your situation and determine if filing a Heggstad petition is appropriate in your case. Contact attorney Nathan Mubasher for a consultation and evaluation of your case.
Schedule a consultation today with attorney Nathan Mubasher.
Call (800) 691-2721 and let’s talk about your options.
CONTACT INFORMATION FOR NATHAN MUBASHER:
Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.