A Heggstad petition can save Californians time and money during probate

Most Californians know that it is important to have a last will and testament and a durable power of attorney. Many also know that creating a trust can save heirs time and money after the death of a family member. The estate planning process can be very confusing and it may be advisable to have a revocable living trust.

The main reason for placing one’s property into the name of a trust is to avoid probate, a process that can take a minimum of nearly a year to complete and can cost the surviving family and heirs a lot of money.

When a trust is created, property the settlor intends to transfer into the name of his or her trust is listed in the trust documentation as a trust asset. Unfortunately, sometimes title to the property is not properly transferred into the name of the trust. This may occur for a number of reasons such as:

• The person creating the trust forgot to transfer the property
• The settlor dies before the transfer is complete
• The paperwork effecting the transfer is flawed
• The person creating the trust did not know the title on the property needed to be changed

Fortunately, California law allows for a shortened and much less expensive option for those caught in this situation. A Heggstad petition allows the family of a deceased settlor to avoid probate of real and personal property that was intended to be in the settlor’s trust. This abbreviated process can be completed in as little as two to three months and costs very little compared to the probate process.

What is a Heggstad petition?

In 1989, a man created a will and revocable living trust, listing all of his real estate holdings in Schedule A of his trust documents. Pertinent language in his trust stated that he transferred all of the property listed in Schedule A to himself as the trustee of his own trust.

When the man died about a year later, it was discovered that title to one of the properties he owned had not actually been transferred into the name of the trust. A number of heirs fought over the property and took the case to court. The California Court of Appeals ruled that it was sufficient for him to have the particular property listed in his trust documents and the family was allowed to avoid probate of that piece of property.

Since then, a shortened process – using a Heggstad petition – was created for just this type of situation. The petition verifies, among other facts, that a trust was created and that the creator of the trust was in the process of transferring title of his or her property into the name of the trust before his or her death.

Seek the help of a lawyer

If you or someone you know is facing this type of situation or has other questions about trusts, wills, health care directives or avoiding probate, contact an experienced estate planning lawyer. A knowledgeable attorney can guide you through the estate planning and probate processes, and may also assist you with litigation resulting from issues with these processes.