You hopefully have read my last two posts about Heggstad petitions. Though brief I think they provide a nice overview of what a Heggstad petition is. I have many other blog posts on the topic though. Just check the box on the right and find the other ones!
Today we are talking about complexities with Heggstad petitions. Or what I am calling today the advanced course of study. A graduate level program if you will!
Let’s say your case does not have any of the basics we look for in a Heggstad petition. There is no schedule of assets or the asset is not listed there. There is no general transfer. Then what? I have performed many dozen Heggstad petitions over the years. Some more complex than others. I remember one that was approved where I told the client it was less than a 50% chance of success… but I guess the Judge woke up on the right side of the bed that day!? The fact is if your attorney drafts the petition right it can paint the picture clearly for the Judge to show them that nobody is harmed, that attorney fees are reduced and that the procedure will be much quicker than a full probate. This saves the family money and alleviates the busy court docket. It’s a true win-win situation!
So what can you look for to show the intent to fund the trust with the asset in question? The best evidence is something in WRITING. It can be anything but the written word is much better than the oral word in Court! Maybe mom sent you a letter, in her handwriting, that says, “sonny, all of my assets are in my trust.” That could be good evidence.
On the other hand maybe we can show why the asset was taken out of the trust. The most common situation is for a re-finance of the home mortgage. A letter from the mortgage company saying that they required it be removed from the trust to complete the re-fi is usually good evidence in a Heggstad situation; though I did have one recently like that which was denied.
What else? Let your mind wander and think, think, think! Maybe dad contacted the stock broker about putting the assets in the trust? Maybe dad had an appointment at the bank but was unable to make it? Maybe dad signed letters with the drafting attorney which the drafting attorney mailed out but the banks ignored? There are so many possibilities. The key is thinking and doing some research. Oh ya, and hiring a really experienced attorney!
Let’s talk about YOUR Heggstad case! Contact me with questions. -John