Heggstad Petition
A Heggstad Petition is a legal procedure used in California probate law to transfer property into a revocable living trust when that property was intended to be part of the trust but was inadvertently left out or not formally transferred during the grantor’s lifetime. The petition is named after the case Heggstad v. Heggstad (1993), which clarified the procedure for transferring real property into a trust after the grantor’s death.
1. Purpose of a Heggstad Petition
The primary purpose of a Heggstad Petition is to facilitate the transfer of real estate (or other assets) into a trust when the decedent (the person who passed away) intended for the property to be included in the trust but failed to properly transfer it before death. If the property was intended to be part of the trust, the Heggstad Petition allows for the court to confirm this intent and avoid a formal probate process for the asset.
2. What is Required for a Heggstad Petition?
To file a Heggstad Petition, the petitioner must meet several requirements:
- Trust Existence: The property in question must be part of a valid and active living trust created by the decedent. The trust must exist at the time of death.
- Intention to Transfer: There must be clear evidence that the decedent intended for the property to be part of the trust.
- Property Not Transferred: The property, such as real estate, was not properly transferred into the trust during the decedent’s lifetime, meaning the title or deed to the property does not reflect the trust as the owner.
- Proof of Intent: The petitioner must provide sufficient evidence that the decedent intended to transfer the property into the trust. This can include documents such as:
- The trust document itself.
- Declarations or correspondence indicating the decedent’s intent.
- Evidence that the decedent took steps to transfer the property (such as preparing deeds or other documents that were not completed before their death).
3. How Does the Heggstad Petition Work?
The process of filing a Heggstad Petition generally involves the following steps:
Step 1: Filing the Petition
The petition must be filed in the probate court in the county where the decedent lived at the time of death. The petition typically includes:
- The trust document.
- A declaration from the petitioner (usually the trustee or a person with knowledge of the trust) explaining that the decedent intended to transfer the property into the trust but failed to do so.
- A list of the assets intended for the trust, including the property that is the subject of the petition.
Step 2: Court Hearing
The probate court will schedule a hearing to review the petition. The court will evaluate the evidence and determine if the decedent’s intent to transfer the property into the trust is clear and whether the Heggstad Petition is appropriate.
Step 3: Court’s Decision
If the court is satisfied with the evidence presented, it will issue an order confirming that the property is part of the trust and is to be transferred to the trustee. This order may also allow for the property to be titled in the name of the trust without the need for a full probate proceeding.
Step 4: Recording the Order
After the court’s approval, the order is typically recorded with the county recorder’s office to update the property title and officially transfer ownership to the trust.
4. Benefits of a Heggstad Petition
A Heggstad Petition can offer several advantages:
- Not for All Property Types: The Heggstad Petition is typically used for real property, but it can sometimes be applied to other types of property that were intended to be part of the trust but were not transferred, such as bank accounts or business interests.
- Clear Intent: If there is insufficient evidence of the decedent’s intent to include the property in the trust, the court may not grant the petition. The petitioner must provide strong documentation of the decedent’s intentions.
- Limited to Omitted Property: The petition only applies to property that was clearly intended to be part of the trust but was omitted due to an oversight or error. It does not allow for the inclusion of assets that were never intended to be part of the trust.
6. When to Consider a Heggstad Petition
A Heggstad Petition may be appropriate in the following scenarios:
- The decedent has a living trust but failed to transfer a property (such as a house or land) into the trust before their death.
- The property is still in the decedent’s name, and no formal probate proceeding has yet been initiated.
- There is clear documentation or other evidence that the decedent intended for the property to be included in the trust.
In these cases, the Heggstad Petition can streamline the process of transferring the property into the trust and avoid unnecessary delays or expenses.
