Creating a trust is a way to protect assets (property, stocks, etc.) for your beneficiaries so that they can inherit as you intend. However, there are times when a trust’s creator may make a crucial error that negatively affects his or her heirs. One error commonly associated with the creation of trusts is the failure to transfer certain assets into the trust. When this happens a beneficiary must go through the probate process before receiving that part of their inheritance.  In California, probate code 850, a Heggstad petition gives residents the option of skipping the tedious probate process while allowing the assets to be transferred directly to the trust. Understanding how the Heggstad petition is filed and who can benefit from it is useful for those who worry about future problems with a trust that they establish.

 What is a Heggstad Petition?

A Heggstad petition is used when an asset or property is excluded from a trust. In order to utilize the petition beneficiaries must be able to prove that the decedent originally intended to include the property or asset in the trust. In order to file a petition, you must provide the court with:

  • Descriptions of the assets in question;
  • A copy of the trust document;
  • Information about the decedent and all beneficiaries;
  • Documents that confirm the deceased person’s intent regarding the assets in question;
  • How you would like to remedy the situation.

Proving to the court that the decedent originally intended to include the assets in their trust is the most important part of filing the petition. In the original Heggstad case, the beneficiaries used a schedule of assets listing the property that was excluded from the trust to prove the decedent’s original intent.

 When to File the Petition

In California, a Heggstad petition should be filed when the omission is discovered after the creator of the trust passes away. The petition is often utilized when the property transfer is not completed due to an extenuating circumstance such as hospitalization, an emergency, etc. Also, the decedent may have failed to complete the transfer because of an error with documentation that went unnoticed until after he or she passed away. Oversights associated with trusts are not uncommon, and the Heggstad petition is designed to help beneficiaries carry out the wishes of their family without going through an extended probate period.

 Consult an Attorney

While discovering an oversight in a trust is not unusual, you should take the situation seriously.  Proving that the omission was an error and resolving it using a Heggstad petition is often the only way to avoid a time-consuming probate process. No matter how clear-cut you believe your situation is, always remember that each probate case is different. Discussing your unique case with a qualified probate attorney is the best way to receive a successful judgment after the petition is filed.

We at MMZ LAW understand the importance of protecting the legacy that your loved one wanted to leave you. Contact us today at 909-256-6702 to schedule a consultation at our conveniently located Claremont office. MMZ LAW is available to discuss your unique situation and help you decide the best way to proceed.

Please call (909) 256-6702 to discuss your questions and schedule a free consultation:
Trust and Estate, Elder Law, Special Needs, Conservatorship, Trust Administration and Probate in Los Angeles, San Bernardino, Riverside, Orange and San Diego counties. We offer flat, hourly and contingent fees, based on the type of matter.




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MARIVEL M. ZIALCITA is the founder of MMZ LAW, A Professional Corporation, where she practices in the areas of Trust and Estate, Elder Law, Special Needs, Conservatorship, Trust Administration and Probate. Ms. Zialcita is a frequent speaker on trust and estate matters and holds memberships in the State Bar of California, Trust and Estate Section, The San Bernardino County Bar Association, Wealth Counsel and Elder Counsel. She currently assists in the pro bono legal services program at the James L. Brulte Senior Center in Rancho Cucamonga, California. She is based in Claremont and assists clients throughout Southern California.

This information is educational information only and not legal advice.