How to choose the right guardian and trustee in your living trust when you don't have a perfect guardian or trustee.
Heggstad Petition - How to Avoid Probate
If you don't transfer your assets to your living trust, but you have a writing expressing your intent to do so, then your successor trustee can file a Heggstad Petition.
One of the main reasons to create an estate plan and to have a living trust in California is so your family will not have to go through the complexity, hassles and costs of probate.
If you transfer your assets to your living trust, your family should avoid probate.
Real estate (your home) worth more than $61,500 and other assets, mostly bank and brokerage accounts worth more than $184,500 are subject to probate.
However, if your loved one had a living trust but didn’t transfer his home or his big bank or investment accounts or property to the trust, there may be a way to avoid probate.
What is a Heggstad Petition?
A Heggstad Petition is named after a guy named Heggstad - the Estate of Heggstad (1993) 16 Cal App 4th 943. In the Heggstad case the California Court of Appeals affirmed the probate court’s ruling that property that was never transferred to a living trust would still be included in the trust because there was a writing expressing the decedent’s intent for the property to be in his living trust. A Heggstad petition is filed with the local probate court through California Probate Code section 850.
One of the documents you will sign when you sign your living trust is the Trust Schedule aka Schedule of Trust Assets, Schedule A. The schedule states your general intent to transfer your assets to your living trust and it often also lists specific assets, such as your home address and the names of your banks and financial institutions, business interests and any other high value assets.
If you never get around to transferring one or more of your probatable assets to your trust, but you have a writing expressing your intent to do so - like the Trust Schedule, then your successor trustee can file a Heggstad Petition with the probate court. In most cases, the judge will approve the petition and order the asset to be included in the living trust and your family will avoid probate.
Filing a Heggstad Petition is not the ideal outcome, because you will have to hire and pay an attorney and it may take about three to four months for the court to issue its order. The ideal outcome is if you transfer your assets to your living trust, especially your real property and high value bank and brokerage accounts.