California Probate Code 850 | Heggstad Petition

California Probate Code § 850 provides a legal procedure that may help when real property intended to be held in a living trust was not formally transferred into the trust before the trustor died.

In certain circumstances, a court petition commonly known as a Heggstad petition may allow the successor trustee to establish that the property belongs to the trust without requiring a full probate administration solely to transfer that property.

What happens when someone creates a living trust but dies before transferring real estate into it?

Does the property have to go through probate, or can the trustee ask the court to confirm that it belongs to the trust?

When creating a living trust, it is important to properly transfer the intended assets into the trust. For real estate, this commonly involves preparing and recording an appropriate deed.

A properly established and funded living trust can help avoid probate for assets held in the trust. However, when property was not formally transferred before the trustor’s death, additional legal steps may be necessary.

Whether a Heggstad petition is appropriate depends on the trust documents, evidence of the trustor’s intent, and the circumstances surrounding the property’s ownership.

When Real Property Is Not Transferred Into a Trust

Creating a living trust does not automatically transfer ownership of real estate into the trust. If the property was never properly transferred, the successor trustee may discover the problem only after the trustor dies.

There are several reasons real property may not be titled in the name of a trust:

• Refinancing: Property may have been transferred out of a trust during a refinancing transaction and never transferred back.
• Oversight: The trustor may have forgotten to complete the property transfer.
• Misunderstanding: The trustor may not have realized that creating a trust document alone does not change the property’s title.
• Death before completion: The trustor may have died before the intended transfer was completed.

I’ve worked with clients who were unaware that their real estate had never been transferred into their living trust.

Can the Successor Trustee Avoid a Full Probate Administration?

Depending on the circumstances, California Probate Code § 850 may provide a procedure for asking the Probate Court to determine whether property belongs to a trust.

A petition commonly known as a Heggstad petition may be appropriate when the trust documents and other evidence establish that the deceased trustor intended the property to be held in the trust.

The court may be asked to confirm ownership of the property as a trust asset, even though a deed transferring title into the trust was not recorded before the trustor’s death.

However, the existence of a living trust does not automatically establish that every asset owned by the deceased belongs to it. The outcome depends on the trust documents, the property’s ownership history, and applicable California law.

For additional information, see California Probate Code § 850.

Why This Matters When Selling Trust Real Estate

When a successor trustee needs to sell real property, an unresolved title issue can delay the transaction.

I’ve encountered situations in which successor trustees needed to pursue Heggstad petitions because the deceased trustor’s real estate had never been formally transferred into the trust.

When the legal requirements are satisfied, a successful petition may establish the trust’s ownership of the property without requiring a full probate administration solely for that transfer.

A qualified California trusts and estates attorney should review the documents and determine whether a petition is appropriate before the trustee proceeds with a sale.

Filing California Probate Code 850 Heggstad Petitions in California

A Heggstad petition is generally prepared as a formal court pleading under California Probate Code § 850. There is no single statewide Judicial Council form specifically designated as a Heggstad petition, and additional court forms or documents may be required.

Depending on the circumstances, the petition and supporting documents may include:

• A description of the real or personal property claimed to belong to the trust.
• Relevant provisions of the trust document and any amendments.
• Information identifying the deceased trustor, successor trustee, beneficiaries, and other interested parties.
• Documents supporting the claim that the trustor intended the property to be held in the trust.
• A statement explaining the legal basis for the petition and the court order being requested.

After the petition is filed with the appropriate California Superior Court, a hearing is generally scheduled.

Under California Probate Code § 851, at least 30 days’ notice of the hearing is generally required. The notice must be provided to the persons entitled to receive it, using the procedures required by law.

How Long Does a Heggstad Petition Take?

The timeline varies depending on the county, court availability, completeness of the supporting documentation, and whether anyone objects to the petition.

Attorney fees and court filing costs also vary depending on the complexity of the matter.

California law does not generally require a person to hire an attorney to file a petition on their own behalf. However, questions about who has legal authority to represent a trust or another party in court can make legal representation necessary.

Because a Heggstad petition involves establishing property ownership and obtaining a court order, consulting a qualified California probate and trusts attorney is strongly recommended.

Probate and Trust Attorneys

California probate and trusts attorneys may handle a wide range of legal matters, including estate planning, trust administration, probate proceedings, trust litigation, estate disputes, and elder law.

Only appropriately licensed legal professionals may provide California legal advice or represent clients in court, subject to applicable rules and exceptions.

Estate planning and probate attorneys can assist with preparing legal documents such as powers of attorney, trust transfer deeds, and court petitions, including petitions brought under California Probate Code § 850.

Why Local Court Rules Matter

California has 58 counties, and Superior Courts may have different local rules and procedures for probate and trust matters.

For example, an attorney practicing in Los Angeles who files a Heggstad petition in Santa Clara County must comply with the applicable Santa Clara County Superior Court rules and filing requirements.

The appropriate filing procedure may depend on the county, the nature of the petition, and whether an existing probate or trust proceeding is pending.

Costs and Possible Outcomes

A Heggstad petition is not guaranteed to succeed. The court must determine whether the evidence and applicable law support confirming the property as a trust asset.

When successful, a petition may avoid the need for a full probate administration solely to transfer the property in question.

Attorney fees, court costs, and the time required vary depending on the complexity of the case and whether objections arise. A successful petition may be less expensive than a full probate proceeding, but the total cost cannot be guaranteed.

If the petition is denied, additional legal proceedings, including probate administration, may be necessary.

Consulting a qualified California probate and trusts attorney can help determine whether a Heggstad petition is appropriate and what procedures apply.