Recently, I have had to file a few Heggstad Petitions in order to help clients put real property into a revocable trust. A Heggstad Petition is necessary when a person creates a revocable trust but does not actually place any property into the trust. Generally, when you draft a revocable trust you should also draft a deed transferring real estate into the name of the trust. For a number of reasons even if you did place real estate into a trust, it may have been removed and put into your individual name. This is particularly common when a person does a refinance and the lender requires that real estate not be in the name of the trust.
A Heggstad Petition under Probate Code Section 850 is used to get a court order to place an asset into a trust. In order to use Probate Code Section 850, a beneficiary or successor trustee must prove that the person who established the trust (known as a decedent because the person would most likely be deceased) originally intended to place the property into the trust.
A Heggstad Petition is usually done after a person’s death and upon realizing that certain property is not in the name of the trust. For example, if real estate is not placed into a trust, upon the owner’s death, the estate of the deceased must go into probate in order to pass on the property to that person’s heirs. If a person created a trust, generally it was to avoid probate.
In order to prove intent, generally the Court will look at a schedule of assets that is usually attached to the Trust. Courts will look into other factors to determine the decedent’s intent, including what property was already in the trust and the chain of title of certain assets.
If you find that a person’s property is not placed into a trust, it is important to discuss this matter with an attorney to ensure any trust or probate administration goes smoothly. Contact Attorney Anthony Marinaccio at 818-839-5220 if you would like to set up an appointment or have any questions regarding trust assets.