A popular estate planning vehicle for many people is the living trust. A living trust is a legal document that is created during your lifetime in which a designated person, the trustee, is responsible for managing your assets for the benefit of your beneficiaries after your death. The purpose of creating a living trust is to ensure a seamless transfer of your assets while bypassing the probate process — which can be costly as well as time-consuming.
The assets that you place in your trust are available to you and remain under your control until after your death, or if you should become incapacitated. However, over the years, you may end up inheriting property or other assets which you neglect to put in your living trust. You may have removed property from your trust in order to refinance, but then never got around to retitling it in the name of the trust. Or you simply failed to title some real estate, bank, or investment accounts in the name of the trust.
Whatever the reason, property or assets not included in a deceased person’s living trust at the time of their death would typically have to go through the probate process before being distributed to the beneficiaries. However, California Probate Code 850 provides the option of skipping the time-consuming and costly probate process with a Heggstad Petition.
Do you need one?
The ultimate goal of filing a Heggstad Petition is to avoid California’s costly probate process. However, the key to filing a Heggstad Petition is all about being able to provide proof of the decedent’s intent to have the property or assets in question transferred into the trust before their death. Due to an oversight or mistake on their part, the transfer was never completed; therefore, those assets were not included as part of the trust assets.
The process of filing a Heggstad Petition is generally started by the trustee successor of a living trust following the passing of the trustor, a beneficiary such as parent, spouse, child, or other interested party after they contact an estate planning attorney who is experienced in probate law.
How to file a Heggstad Petition
While each situation is unique, the following is a list of some of the documentation needed to better ensure your chances of having a successful outcome when filing a Heggstad Petition in California:
- A copy of the living trust of the decedent
- The schedule of assets for the living trust
- Property deed(s)
- Information about the decedent, heirs, and beneficiaries
After reviewing all of the documentation and the particulars, your probate attorney will let you know if any additional information is required to file the petition.
Once you have filed your petition, there will be a hearing for the petition at which time you may present all of the pertinent documentation. The Heggstad Petition process generally takes about 60 days from preparing the documentation and filing the petition until the judge renders a decision.
The Leo Law Office, located in San Diego, handles a variety of issues involved in trust and estate litigation, including filing Heggstad Petitions for transfer of property to a trust.