Being an expert on California Heggstad petitions, pursuant to California Probate Code section 850, I get a lot of lawyers asking me questions about Heggstads. That’s ok. I don’t mind. A lot of times the other lawyer realizes it is a complex petition that they should leave to the experts. In other cases I help them out. In any event I need good karma just like everybody else!
Anyway, today I thought I would share a few paragraphs that we commonly use in a Heggstad petition. They really get at the crux of the case law; the intent of the Settlor or Grantor of the trust to include the assets in the trust before they died. As you may have read on my website before if the Heggstad is done right the asset will be put into the trust, by Court order, retroactive to the date of death. It’s an incredible law as it can save people tens of thousands of dollars to avoid probate after death.
As a reminder Heggstad petitions rely on case law developed in the Estate of Heggstad case. As you may know laws are generally developed by statute (i.e. the California probate code) or case law (cases like Heggstad).
I have successfully performed Heggstad petitions in many counties of California. As you know I can “appear” telephonically via Court Call and thus can easily help you out with a Heggstad petition anywhere in California. Though I am sure there was one I can not remember ever filing a Heggstad petition that did not work. I won’t say I am batting .1000 but I think I might be! When I analyze and evaluate your case I will you my best guess on the percentage chance of success. I know what the Court wants to see. I like to think I make the process very easy for my clients.
If you have lost a friend or loved one, you are the trustee, you are faced with an asset out of a trust, and want to get it into the trust without a full probate let’s see if a Heggstad petition will work for you. Contact me to discuss your case. -John
P.S. Here are those key paragraphs I mentioned above:
11. In accordance with the Estate of Heggstad, 16 Cal. App. 4th 943, 20 Cal. Rptr. 2d 433 (1993), real property listed on a schedule of assets attached to a trust or referred to in the trust itself is real property owned by the trust and is therefore exempt from the administration of the estate in a Probate Court proceeding. In this case, the property was specifically mentioned on the attached Schedule of Assets.
12. Under California case law and code sections, transfer of title of an interest in real or personal property is not a prerequisite to creation of a valid trust. It can be created either by agreement or by a unilateral declaration of the people who assumed to act as trustees. By declaring herself as trustee of the property, a trust was created, even though at the time of the death of Settlor the assets were not titled in the name of the trust.
13. Based on Settlor’s intent, as described herein, to include all of the assets listed on the Schedule of Assets as a part of the trust estate, the assets should be deemed to be part of the trust estate.