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Heggstad Petition

Filing a Heggstad Petition in California

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Written by Troy Werner

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POSTED ON: November 19, 2018

If you have inherited property in California, you may have encountered a Heggstad petition. While finding an error, omission, or oversight in a loved one’s estate planning can be upsetting, a properly filed Heggstad petition can avoid a lengthy probate process. Discussing the details of a Heggstad petition with your family and ensuring that they, […]

If you have inherited property in California, you may have encountered a Heggstad petition. While finding an error, omission, or oversight in a loved one’s estate planning can be upsetting, a properly filed Heggstad petition can avoid a lengthy probate process. Discussing the details of a Heggstad petition with your family and ensuring that they, too, understand the basics it is also important.

What Is a Heggstad Petition?

A Heggstad petition is filed to avoid potentially expensive and time-consuming probate proceeding. It is used when an asset or property owner dies with the asset still in the property owner’s name, even though he or she intended to transfer it to a trustee. The petition establishes that the asset does indeed belong to the trustee, and orders the transfer of the property. The trustee may then take possession of the property, sell it, or refinance. Usually, the listing of a property schedule is used as the basis for the court’s findings.

The precedent was established by the 1993 case of the Heggstad estate (16 Cal. App. 4th 943)in San Mateo County.  In 1989, property owner Halvard Heggstad established a will which named his son, Glen Heggstad, as its executor. At the same time, HalvardHeggstad created a legal living trust which also deemed his son as his successor trustee. The documentation of the trust included a schedule of Halvard Heggstad’s properties; fifth on the list was a Menlo Park address, which was incorrectly labeled as a partnership interest.

A month later, Halvard Heggstad married, but did not change his will or trust to include his new wife. A few months after that, he passed away. While Glen Heggstad did not dispute that his stepmother was entitled to a third of his father’s estate, he claimed that the property listed in the trust belonged to him despite the error and his stepmother’s claims that it had not been legally transferred. After examining the documents, the probate court determined that Halvard Heggstad’s intent was made clear by the trust, and awarded the property to his son.

California Filing Process & Timeline

Heggstad petitions should be filed as soon as beneficiaries notice a discrepancy between the details of the trust and the actual title transfer of the property. This may have taken place due to a clerical error, accidental omission, or improper filing. Sometimes, the deceased may have been in the act of completing the title transfer when he or she passed away or was taken ill.

The process of filing a Heggstad petition usually takes between two to three months, as opposed to the typical seven to twelve months typically required for the probate process. Although the Heggstad petition established legal precedent regarding the distribution of California real estate, it has also been used to determine the beneficiaries of other assets.

Heggstad petitions are filed under California Probate Code 850, which details who can file for a petition requesting a court order regarding property. They can be filed by an adult or by a guardian on behalf of a minor. A notice of 30 days is required for all interested parties, as opposed to the usual 15, the norm for petitions of the probate court. Newspaper notification is not required.

After the 30 day period, the filing and hearing before a judge is usually accomplished within 60 days.  Although the waiting period can be frustrating when beneficiaries may be eager to settle the estate, the Heggstad petition process is faster, cheaper, and less emotionally draining than the full probate course process.

Filing a Successful Petition

Chances of success in filing a Heggstad petition increase based on several factors. If the property in question is listed on a signed schedule of assets, the trustee’s case is strengthened. It also helps of the owner has signed a trust document, as in the original Heggstad case, clearly establishing intent to distribute the property.

Other documents may also help establish a claim, but it’s best if they are valid, witnessed documents that are not separate from the trust. Judges are also more likely to consent to a Heggstad petition if the involved parties are not in conflict. The property’s inclusion in a pour over will—a traditionally understood will which functions in partnership with a trust—also boosts the likelihood of resolving property transfers without the probate process. The beneficiaries should also present to the judge a reasonable outcome to which they have previously agreed.

The language of a successful petition will closely track with the original Heggstad finding. Judges will rely on this case law to guide them in your own petition. If your situation is similar and you can clearly prove the intent of the deceased, including proper documentation and a correctly executed trust, you stand a fairly strong prospect of avoiding probate court.

Essential Heggstad Documentation

Which documents, then, are necessary? Having access to legally valid documents is essential, and although signed letters and the like can help the judge with his or her decision, it’s best to present notarized, witnessed documentation which has been prepared by a lawyer.

It’s also important to ensure that the deceased has specifically listed the property under dispute in a schedule, as in a tax document. If the language of the trust is vague or includes such terms as “all properties,” you will have less chance of a judge granting a Heggstad petition. The property all beneficiaries are seeking a court order for, then, should be fully described with an address and the correct name of the owner.

Heggstad petitions should include current and accurate information about the deceased as well as his or her intended beneficiaries. To this end, it’s important for family members to have on hand such closely guarded information as social security numbers, attorney information, death certificates, and places of residence.

A copy and, if possible, the original trust document is essential, as well as the original property owner’s last will and testament. The property deed or a copy of it is also useful.

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