What Is a Heggstad Petition?

A Heggstad petition asks the probate court to confirm that an asset actually belongs to a trust even though title was never formally transferred into it. It takes its name from Estate of Heggstad, the 1993 California decision holding that a written declaration of trust identifying the property, commonly a schedule of assets attached to the trust, can itself make the trust the owner, no separate deed required.

Procedurally it is a petition under Probate Code section 850, heard in the probate department, supported by the trust instrument, the schedule or other writing showing the decedent's intent, and evidence about the asset. When it works, the family avoids an entire probate administration for the stray asset: the house that was refinanced and never deeded back to the trust is the classic example, and refinance-related title dropouts remain the most common trigger.

Heggstad petitions are routinely granted when the paper trail is clean, and contested when someone benefits from the asset staying outside the trust, since an asset that passes through the will or intestacy may go to different people than the trust would send it to. The strength of the written evidence of intent decides these fights.

The Problem It Solves

People create a living trust and then fail to finish the job. A house is never deeded into the trust, an account is never retitled, a business interest is never assigned. On death, that property is technically owned individually and would ordinarily require probate, defeating the point of the trust.

The Heggstad petition, brought under Probate Code section 850, asks the court to confirm that the asset is already trust property because the settlor manifested an intention to include it, even though title was never formally transferred.

What the Petition Has to Show

The strength of the petition depends almost entirely on the documentary evidence of intent. The most persuasive is a schedule of trust assets attached to the trust that specifically identifies the property, which is the fact pattern the doctrine originated from.

Also useful are a general assignment of assets to the trust signed by the settlor, a deed that was executed but never recorded, and correspondence with the estate planning attorney identifying the asset. A generic recital that the settlor intends to transfer property in the future is considerably weaker than a specific identification, and vague evidence of intent is where these petitions fail.

Practical Value

A successful petition avoids a full probate for the asset, which in Los Angeles County can mean saving a substantial amount in statutory fees and a year or more of delay. It is generally heard in the probate department on regular notice to interested persons, and it can be resolved in months rather than years.

The far better answer, of course, is to fund the trust properly in the first place. Funding review belongs in every estate planning engagement and should be repeated after any significant purchase or refinance, because refinancing routinely takes a home out of a trust and nobody puts it back.