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California Probate Code 850 Petition

I have personally filed, and successfully completed, more Heggstad petitions than any attorney I know of.  I know the nuances.  I know what Judges like to see. I know what the Heggstad case says. I also know to use California probate code 850 and not California probate code 17200 for a Heggstad petition. Ask your probate attorney which probate code section they would use for their Heggstad petition.  PC 17200 does a lot but it’s not the foundation, or the law, for a Heggstad petition.  In a Heggstad petition you need to establish intent to hold assets in the trust that is in line with the Heggstad case. Once that intent is established California Probate Code 850 is what “moves” the asset into the trust, retroactively, to the date of death. Know the code!  Let’s talk about YOUR Heggstad case!  -John

P.S. Yes, I am happy to associate in with other attorneys to help them complete their Heggstad petition successfully.

 

PROBATE CODE SECTION 850-859

850. (a) The following persons may file a petition requesting that
the court make an order under this part:
(1) A guardian, conservator, or any claimant, in the following
cases:
(A) Where the conservatee is bound by a contract in writing to
convey real property or to transfer personal property, executed by
the conservatee while competent or executed by the conservatee’s
predecessor in interest, and the contract is one that can be
specifically enforced.
(B) Where the minor has succeeded to the interest of a person
bound by a contract in writing to convey real property or to transfer
personal property, and the contract is one that can be specifically
enforced.
(C) Where the guardian or conservator or the minor or conservatee
is in possession of, or holds title to, real or personal property,
and the property or some interest therein is claimed to belong to
another.
(D) Where the minor or conservatee has a claim to real or personal
property title to or possession of which is held by another.
(2) The personal representative or any interested person in any of
the following cases:
(A) Where the decedent while living is bound by a contract in
writing to convey real property or to transfer personal property and
dies before making the conveyance or transfer and the decedent, if
living, could have been compelled to make the conveyance or transfer.
(B) Where the decedent while living binds himself or herself or
his or her personal representative by a contract in writing to convey
real property or to transfer personal property upon or after his or
her death and the contract is one which can be specifically enforced.
(C) Where the decedent died in possession of, or holding title
to, real or personal property, and the property or some interest
therein is claimed to belong to another.
(D) Where the decedent died having a claim to real or personal
property, title to or possession of which is held by another.
(3) The trustee or any interested person in any of the following
cases:
(A) Where the trustee is in possession of, or holds title to, real
or personal property, and the property, or some interest, is claimed
to belong to another.
(B) Where the trustee has a claim to real or personal property,
title to or possession of which is held by another.
(C) Where the property of the trust is claimed to be subject to a
creditor of the settlor of the trust.
(b) The petition shall set forth facts upon which the claim is
based.

 

851. (a) At least 30 days prior to the day of the hearing, the
petitioner shall cause notice of the hearing and a copy of the
petition to be served in the manner provided in Chapter 4 (commencing
with Section 413.10) of Title 5 of Part 2 of the Code of Civil
Procedure on all of the following persons where applicable:
(1) The personal representative, conservator, guardian, or trustee
as appropriate.
(2) Each person claiming an interest in, or having title to or
possession of, the property.
(b) Except for those persons given notice pursuant to subdivision
(a), notice of the hearing, together with a copy of the petition,
shall be given as provided in Section 1220 if the matter concerns a
decedent estate, as provided in Section 1460 if the matter concerns a
conservatorship or guardianship, or as provided in Section 17203 if
the matter concerns a trust to all of the following persons:
(1) Each person listed in Section 1220 along with any heir or
devisee whose interest in the property may be affected by the
petition if the matter concerns a decedent estate.
(2) Each person listed in Section 1460 if the matter concerns a
conservatorship or guardianship.
(3) Each person listed in Section 17203 if the matter concerns a
trust.
(c) The court may not shorten the time for giving the notice of
hearing under this section.
852. An interested person may request time for filing a response to
the petition for discovery proceedings, or for other preparation for
the hearing, and the court shall grant a continuance for a
reasonable time for any of these purposes.
853. A person having or claiming title to or an interest in the
property which is the subject of the petition may, at or prior to the
hearing, object to the hearing of the petition if the petition is
filed in a court which is not the proper court under any other
provision of law for the trial of a civil action seeking the same
relief and, if the objection is established, the court shall not
grant the petition.

 

854. If a civil action is pending with respect to the subject
matter of a petition filed pursuant to this chapter and jurisdiction
has been obtained in the court where the civil action is pending
prior to the filing of the petition, upon request of any party to the
civil action, the court shall abate the petition until the
conclusion of the civil action. This section shall not apply if the
court finds that the civil action was filed for the purpose of delay.

 

855. An action brought under this part may include claims, causes
of action, or matters that are normally raised in a civil action to
the extent that the matters are related factually to the subject
matter of a petition filed under this part.
856. Except as provided in Sections 853 and 854, if the court is
satisfied that a conveyance, transfer, or other order should be made,
the court shall make an order authorizing and directing the personal
representative or other fiduciary, or the person having title to or
possession of the property, to execute a conveyance or transfer to
the person entitled thereto, or granting other appropriate relief.
856.5. The court may not grant a petition under this chapter if the
court determines that the matter should be determined by a civil
action.
857. (a) The order is prima facie evidence of the correctness of
the proceedings and of the authority of the personal representative
or other fiduciary or other person to make the conveyance or
transfer.
(b) After entry of an order that the personal representative,
other fiduciary, or other person execute a conveyance or transfer,
the person entitled thereunder has the right to the possession of the
property, and the right to hold the property, according to the terms
of the order as if the property had been conveyed or transferred in
accordance with the terms of the order.

 

858. If a proceeding has been brought under this part by a
conservator on behalf of a conservatee, or by a guardian on behalf of
a minor, and the conservatee or minor dies during the pendency of
the proceeding, the personal representative of the conservatee or
minor’s estate or other successor in interest may proceed with the
matter and the existing proceeding shall not be dismissed on account
of the death of the conservatee or minor.

 

859. If a court finds that a person has in bad faith wrongfully
taken, concealed, or disposed of property belonging to the estate of
a decedent, conservatee, minor, or trust, or has taken, concealed, or
disposed of the property by the use of undue influence in bad faith
or through the commission of elder or dependent adult financial
abuse, as defined in Section 15610.30 of the Welfare and Institutions
Code, the person shall be liable for twice the value of the property
recovered by an action under this part. The remedy provided in this
section shall be in addition to any other remedies available in law
to a trustee, guardian or conservator, or personal representative or
other successor in interest of a decedent.

 

 

PROBATE CODE  SECTION 17200-17211

17200. (a) Except as provided in Section 15800, a trustee or
beneficiary of a trust may petition the court under this chapter
concerning the internal affairs of the trust or to determine the
existence of the trust.
(b) Proceedings concerning the internal affairs of a trust
include, but are not limited to, proceedings for any of the following
purposes:
(1) Determining questions of construction of a trust instrument.
(2) Determining the existence or nonexistence of any immunity,
power, privilege, duty, or right.
(3) Determining the validity of a trust provision.
(4) Ascertaining beneficiaries and determining to whom property
shall pass or be delivered upon final or partial termination of the
trust, to the extent the determination is not made by the trust
instrument.
(5) Settling the accounts and passing upon the acts of the
trustee, including the exercise of discretionary powers.
(6) Instructing the trustee.
(7) Compelling the trustee to do any of the following:
(A) Provide a copy of the terms of the trust.
(B) Provide information about the trust under Section 16061 if the
trustee has failed to provide the requested information within 60
days after the beneficiary’s reasonable written request, and the
beneficiary has not received the requested information from the
trustee within the six months preceding the request.
(C) Account to the beneficiary, subject to the provisions of
Section 16064, if the trustee has failed to submit a requested
account within 60 days after written request of the beneficiary and
no account has been made within six months preceding the request.
(8) Granting powers to the trustee.
(9) Fixing or allowing payment of the trustee’s compensation or
reviewing the reasonableness of the trustee’s compensation.
(10) Appointing or removing a trustee.
(11) Accepting the resignation of a trustee.
(12) Compelling redress of a breach of the trust by any available
remedy.
(13) Approving or directing the modification or termination of the
trust.
(14) Approving or directing the combination or division of trusts.
(15) Amending or conforming the trust instrument in the manner
required to qualify a decedent’s estate for the charitable estate tax
deduction under federal law, including the addition of mandatory
governing instrument requirements for a charitable remainder trust as
required by final regulations and rulings of the United States
Internal Revenue Service.
(16) Authorizing or directing transfer of a trust or trust
property to or from another jurisdiction.
(17) Directing transfer of a testamentary trust subject to
continuing court jurisdiction from one county to another.
(18) Approving removal of a testamentary trust from continuing
court jurisdiction.
(19) Reforming or excusing compliance with the governing
instrument of an organization pursuant to Section 16105.
(20) Determining the liability of the trust for any debts of a
deceased settlor. However, nothing in this paragraph shall provide
standing to bring an action concerning the internal affairs of the
trust to a person whose only claim to the assets of the decedent is
as a creditor.
(21) Determining petitions filed pursuant to Section 15687 and
reviewing the reasonableness of compensation for legal services
authorized under that section. In determining the reasonableness of
compensation under this paragraph, the court may consider, together
with all other relevant circumstances, whether prior approval was
obtained pursuant to Section 15687.
(22) If a member of the State Bar of California has transferred
the economic interest of his or her practice to a trustee and if the
member is a deceased member under Section 9764, a petition may be
brought to appoint a practice administrator. The procedures,
including, but not limited to, notice requirements, that apply to the
appointment of a practice administrator for a deceased member shall
apply to the petition brought under this section.
(23) If a member of the State Bar of California has transferred
the economic interest of his or her practice to a trustee and if the
member is a disabled member under Section 2468, a petition may be
brought to appoint a practice administrator. The procedures,
including, but not limited to, notice requirements, that apply to the
appointment of a practice administrator for a disabled member shall
apply to the petition brought under this section.
(c) The court may, on its own motion, set and give notice of an
order to show cause why a trustee who is a professional fiduciary,
and who is required to be licensed under Chapter 6 (commencing with
Section 6500) of Division 3 of the Business and Professions Code,
should not be removed for failing to hold a valid, unexpired,
unsuspended license.
17200.1. All proceedings concerning the transfer of property of the
trust shall be conducted pursuant to the provisions of Part 19
(commencing with Section 850) of Division 2.

 

17201. A proceeding under this chapter is commenced by filing a
petition stating facts showing that the petition is authorized under
this chapter. The petition shall also state the grounds of the
petition and the names and addresses of each person entitled to
notice of the petition.

 

17202. The court may dismiss a petition if it appears that the
proceeding is not reasonably necessary for the protection of the
interests of the trustee or beneficiary.

 

17203. (a) At least 30 days before the time set for the hearing on
the petition, the petitioner shall cause notice of hearing to be
mailed to all of the following persons:
(1) All trustees.
(2) All beneficiaries, subject to Chapter 2 (commencing with
Section 15800) of Part 3.
(3) The Attorney General, if the petition relates to a charitable
trust subject to the jurisdiction of the Attorney General.
(b) At least 30 days before the time set for hearing on the
petition, the petitioner shall cause notice of the hearing and a copy
of the petition to be served in the manner provided in Chapter 4
(commencing with Section 413.10) of Title 5 of Part 2 of the Code of
Civil Procedure on any person, other than a trustee or beneficiary,
whose right, title, or interest would be affected by the petition and
who does not receive notice pursuant to subdivision (a). The court
may not shorten the time for giving notice under this subdivision.
(c) If a person to whom notice otherwise would be given has been
deceased for at least 40 days, and no personal representative has
been appointed for the estate of that person, and the deceased person’
s right, title, or interest has not passed to any other person
pursuant to Division 8 (commencing with Section 13000) or otherwise,
notice may instead be given to the following persons:
(1) Each heir and devisee of the decedent, and all persons named
as executors of the will of the decedent, so far as known to the
petitioner.
(2) Each person serving as guardian or conservator of the decedent
at the time of the decedent’s death, so far as known to the
petitioner.

 

17204. (a) If proceedings involving a trust are pending, a
beneficiary of the trust may, in person or by attorney, file with the
court clerk where the proceedings are pending a written request
stating that the beneficiary desires special notice of the filing of
petitions in the proceeding relating to any or all of the purposes
described in Section 17200 and giving an address for receiving notice
by mail. A copy of the request shall be personally delivered or
mailed to the trustee or the trustee’s attorney. If personally
delivered, the request is effective when it is delivered. If mailed,
the request is effective when it is received. When the original of
the request is filed with the court clerk, it shall be accompanied by
a written admission or proof of service. A request for special
notice may be modified or withdrawn in the same manner as provided
for the making of the initial request.
(b) (1) An interested person may request special notice in the
same manner as a beneficiary under subdivision (a), for the purpose
set forth in paragraph (9) of subdivision (b) of Section 17200. The
request for special notice shall be accompanied by a verified
statement of the person’s interest.
(2) For purposes set forth in paragraphs (2), (4) to (6),
inclusive, (8), (12), (16), (20), and (21) of subdivision (b) of
Section 17200, an interested person may petition the court for an
order for special notice of proceedings involving a trust. The
petition shall include a verified statement of the creditor’s
interest and may be served on the trustee or the trustee’s attorney
by personal delivery or in the manner required by Section 1215. The
petition may be made by ex parte application.
(3) For purposes of this subdivision, an “interested person” means
only a creditor of a trust or, if the trust has become irrevocable
upon the death of a trustor, a creditor of the trustor.
(4) This section does not confer standing on an interested person
if standing does not otherwise exist.
(c) Except as provided in subdivision (d), after serving and
filing a request and proof of service pursuant to subdivision (a) or
paragraph (1) of subdivision (b), the beneficiary or the interested
person is entitled to notice pursuant to Section 17203. If the
petition of an interested person filed pursuant to paragraph (2) of
subdivision (b) is granted by the court, the interested person is
entitled to notice pursuant to Section 17203.
(d) A request for special notice made by a beneficiary whose right
to notice is restricted by Section 15802 is not effective.
17205. If a trustee or beneficiary has served and filed either a
notice of appearance, in person or by counsel, directed to the
petitioner or the petitioner’s counsel in connection with a
particular petition and proceeding or a written request for a copy of
the petition, and has given an address to which notice or a copy of
the petition may be mailed or delivered, the petitioner shall cause a
copy of the petition to be mailed to that person within five days
after service of the notice of appearance or receipt of the request.

 

17206. The court in its discretion may make any orders and take any
other action necessary or proper to dispose of the matters presented
by the petition, including appointment of a temporary trustee to
administer the trust in whole or in part.

 

17209. The administration of trusts is intended to proceed
expeditiously and free of judicial intervention, subject to the
jurisdiction of the court.
17210. In a case involving a charitable trust subject to the
jurisdiction of the Attorney General, the Attorney General may
petition under this chapter.
17211. (a) If a beneficiary contests the trustee’s account and the
court determines that the contest was without reasonable cause and in
bad faith, the court may award against the contestant the
compensation and costs of the trustee and other expenses and costs of
litigation, including attorney’s fees, incurred to defend the
account. The amount awarded shall be a charge against any interest of
the beneficiary in the trust. The contestant shall be personally
liable for any amount that remains unsatisfied.
(b) If a beneficiary contests the trustee’s account and the court
determines that the trustee’s opposition to the contest was without
reasonable cause and in bad faith, the court may award the contestant
the costs of the contestant and other expenses and costs of
litigation, including attorney’s fees, incurred to contest the
account. The amount awarded shall be a charge against the
compensation or other interest of the trustee in the trust. The
trustee shall be personally liable and on the bond, if any, for any
amount that remains unsatisfied.