The Heggstad Petition: A Practice Guide for California Attorneys

A Heggstad petition asks the probate court to confirm that an asset still titled in a decedent’s name belongs to the trustee of the decedent’s trust. It is a petition under Probate Code section 850, subdivision (a)(3)(B), and it takes its name from Estate of Heggstad (1993) 16 Cal.App.4th 943, which held that “a written declaration of trust by the owner of real property, in which he names himself trustee, is sufficient to create a trust in that property, and that the law does not require a separate deed transferring the property to the trust.” (Id. at p. 950.)

Statutory references are to the Probate Code unless otherwise noted.

1. Fit

   The settlor signed a trust, named herself trustee, and described the asset in the trust or its schedule, either specifically or by a general description that title records can make certain. Title never moved.

2. File

   In the county where the trust is administered (Prob. Code, § 17005, subd. (a)(1)). If the trustee administers it outside California, the civil venue rules apply instead (subd. (c)).

3. Notify

   At least 30 days before the hearing: service in the manner of a summons on anyone who claims an interest in, holds title to, or has possession of the property, and on anyone else whose interest would be affected; delivery under section 1215 to the trustees and beneficiaries. The court cannot shorten the time (Prob. Code, §§ 851, 17203).

4. Prove

   The trust and its schedule, the vesting deed and every later recorded instrument, the death certificate, the section 16061.7 notice, and whatever bridges a gap in the name or the description.

5. Order

   A self-contained order with the street address, assessor’s parcel number and full legal description, or the institution and account identifiers, written for the recorder or the bank that will read it.

6. Record

   Record a certified copy with a cover sheet and the county’s PCOR. The change in ownership statement (BOE-502-D) was due within 150 days after the death (Rev. & Tax. Code, § 480).

The legal basis

An owner can create a trust by declaring that she holds her property as trustee (Prob. Code, § 15200, subd. (a)). For real property, the declaration has to satisfy the trust statute of frauds, which a written instrument signed by the trustee does (Prob. Code, § 15206, subd. (a)). Heggstad held that a signed declaration of trust with a schedule listing the property did both, so no deed was needed. (Estate of Heggstad, supra, 16 Cal.App.4th at pp. 948-951.) A section 850 petition is the procedure that turns that conclusion into an order a recorder, a title insurer or a bank will act on.

Four screening questions

1. Was the owner the trustee?

   The declaration theory works because the owner and the trustee are the same person. Ukkestad calls this the first requirement: “the owner of real property is the settlor creating the trust with himself or herself as the trustee.” (Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal.App.4th 156, 160.) If someone else was the initial trustee, look instead for language in the signed instrument that transfers the property to that trustee. In Carne v. Worthington (2016) 246 Cal.App.4th 548, 551, a trust instrument stating “I transfer to my Trustee the property listed in Schedule A” conveyed the listed property without a deed. Where a trust named people other than the settlors as trustees, the court in Osswald found Heggstad distinguishable. (Osswald v. Anderson (1996) 49 Cal.App.4th 812, 820.)

2. Does a signed writing describe the asset?

   A street address or parcel number on a schedule is the easy case. A general description, such as “all of my real property,” can satisfy the statute of frauds when extrinsic evidence such as public title records makes it certain. (Ukkestad, supra, 235 Cal.App.4th at pp. 162-164.) A declaration that refers to a schedule that was never attached is not enough. (Osswald, supra, 49 Cal.App.4th at p. 818.) Sample 2 builds the general-description case.

3. Did a later transfer take it out of the trust?

   A later sale, a revocation, or a deed out of the trust raises the question whether the asset left the trust. Record title in the decedent’s individual name brings in the presumption that she held the full beneficial title, which only clear and convincing proof overcomes. (Evid. Code, § 662; Carne, supra, 246 Cal.App.4th at pp. 556-558.) Trust terms that allow title to be held in any form help; Heaps relied on them to hold that taking title outside the trust did not, by itself, remove the asset. (Heaps v. Heaps (2004) 124 Cal.App.4th 286, 291-292.) Sample 4 is the refinance version of this problem.

4. Does survivorship or a beneficiary designation control?

   A surviving joint tenant takes by right of survivorship, and a payable-on-death or transfer-on-death designation usually controls the asset it covers. Those assets are rarely Heggstad candidates, and a petition that ignores them invites an objection. Check title and beneficiary designations before you draft.

Personal property

The trust statute of frauds reaches only real property (Prob. Code, § 15206). A trust of personal property can rest on the owner’s written declaration. Even an oral trust of personal property can be proved, but only by clear and convincing evidence, and the settlor’s oral declaration, standing alone, is not enough. (Prob. Code, § 15207, subds. (a) & (b).) In practice the petition still attaches the schedule or other writing that names the account; Sample 3 shows how.

The principal place of administration

For a proceeding under the Trust Law concerning a living trust, the proper county is “the county where the principal place of administration of the trust is located.” (Prob. Code, § 17005, subd. (a)(1).) The principal place of administration is “the usual place where the day-to-day activity of the trust is carried on by the trustee or its representative who is primarily responsible for the administration of the trust.” (Prob. Code, § 17002, subd. (a).) If that place cannot be determined, it is a sole trustee’s residence or usual place of business; with cotrustees, the residence or usual place of business of any of them, as they agree or, if they do not agree, any of them. (Prob. Code, § 17002, subd. (b).)

Section 17005 speaks to proceedings under the Trust Law (Prob. Code, § 15000 et seq.), and Heggstad itself arose on a section 17200 petition (Estate of Heggstad, supra, 16 Cal.App.4th at pp. 951-952), so many practitioners cite section 17200 alongside section 850 in the caption. Either way, plead facts, not the conclusion. Say where the trustee lives and where she does the trust’s work: where she keeps the records, pays the bills and deals with the property. Sample 1 shows a two-paragraph venue allegation.

When the trustee is outside California

If the trust is administered outside the state, subdivision (a)(1) points to no California county, and the proper county “is determined by the rules applicable to civil actions generally.” (Prob. Code, § 17005, subd. (c).) For real property, that means the county where the property sits: the superior court there “is the proper court for the trial” of an action “for the determination in any form” of a right or interest in real property. (Code Civ. Proc., § 392, subd. (a)(1).)

Add the estate-side ground as an alternative. Section 850 also allows a petition “[w]here 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” (Prob. Code, § 850, subd. (a)(2)(C)), and the proper county for proceedings concerning the estate of a California domiciliary is “the county in which the decedent was domiciled, regardless of where the decedent died.” (Prob. Code, § 7051.) For a decedent who was not domiciled in California, section 7052 looks to the county where the decedent died if property is there, and otherwise to any county where property is located. For accounts and other personal property held by an out-of-state trustee, the domicile ground is often the cleaner one. Sample 2 pleads both grounds for a trustee in Oregon.

Section 851 supplies the framework, and for a trust it incorporates section 17203. Together they require notice of the hearing and a copy of the petition at least 30 days before the hearing, and they do not let the court shorten the time. (Prob. Code, §§ 851, subds. (a), (b) & (d), 17203, subds. (a) & (b).) Use form DE-115, the mandatory notice of hearing for petitions to determine a claim to property; it carries the content section 851, subdivision (c), requires, including the street address of real property and a statement that interested persons may respond.

Who receives notice

Methods, and when service is complete

Count backward from the hearing, excluding the hearing day, and count any added days for the method of service backward from there. (Code Civ. Proc., § 12c.) When the last day falls on a weekend or a court holiday, treat the preceding court day as the deadline. DE-115’s own proof of service covers mail only; the form directs you to DE-120(P) for personal service. Sample 1 uses both, and Sample 2 proves service outside California.

When an address is unknown

If the address of someone entitled to delivery under section 1215 is unknown, notice is given as the court requires under Code of Civil Procedure section 413.30, unless the court dispenses with it. (Prob. Code, § 1212.) For someone who must be served in the manner of a summons, such as an heir standing in for the decedent, ask for an order under Code of Civil Procedure section 413.30 or for publication under section 415.50. Either way, document a diligent search before you ask (Cal. Rules of Court, rule 7.52), and ask early, because the order you get may require publication or another step that takes time.

Waivers and consents

A person may waive notice “by a writing signed by the person or the person’s attorney and filed in the proceeding.” (Prob. Code, § 1204.) A consent that also supports the relief tells the examiner the matter is uncontested. In San Diego, a waiver of notice in a section 850 proceeding must include the notice content section 851, subdivision (c), requires (Super. Ct. San Diego County, Local Rules, rule 4.5.2(G)); Sample 4 shows the language.

Verification

A petition must be verified, ordinarily by the petitioner. (Prob. Code, § 1021, subds. (a)(1) & (b)(1).) The attorney may verify when the petitioner is absent from the county or otherwise unable to, unless the petitioner is a fiduciary appointed in the proceeding (Prob. Code, § 1023), but an attorney’s verification is weak evidence of facts the attorney does not know; Contra Costa says so in its rules (Super. Ct. Contra Costa County, Local Rules, rule 7.53). Have the trustee sign. A trustee who signs outside California should declare under penalty of perjury “under the laws of the State of California” (Code Civ. Proc., § 2015.5); Sample 2 has a verification signed in Oregon.

Contents of the petition

The petition “shall set forth facts upon which the claim is based.” (Prob. Code, § 850, subd. (b).) In practice that means the facts that let the court find each element without inference: who created the trust and when, who the trustee was, what the writing says about this asset, how title came to the decedent and where it sits now, who takes under the trust, who the heirs are, and who was given notice and how.

CAPTION: Petition for Confirmation of Trust Assets [Probate Code § 850]
  (name the petitioner and capacity on page one, e.g., "Jane Doe, Trustee")

1. Jurisdiction and venue
   Principal place of administration (Prob. Code, §§ 17005, subd. (a)(1), 17002)
   Facts: where the trustee lives and runs the trust

2. The trust
   Date, settlor, initial trustee; the declaration and schedule (pincite)
   Death, irrevocability, successor trustee, beneficiaries (pincite)
   Section 16061.7 notice: date served (exhibit)

3. The trust asset(s)
   For each asset: how and when the decedent took title (vesting deed)
   Every later instrument affecting title, in order
   Name variances, bridged by the trust's own recitals
   Encumbrances and occupancy

4. Notice
   Heirs; beneficiaries; trustees; persons claiming an interest,
   holding title or in possession; Attorney General (if any)
   Table: name, address, relationship, method of notice

5. Request
   Probate Code section 850, subdivision (a)(3)(B)
   Heggstad (and Ukkestad, Heaps, Carne, as the facts require)
   Application to these facts

6. Prayer (self-contained)
   Street address, APN and full legal description, or institution
   and account identifiers; "subject to" any encumbrance; § 856
   directions to a holder, if needed

Signature; verification; consents and waivers

Exhibits

• The trust. At least the pages that create the trust, name the trustees, state the distribution and describe the property, with the signature and acknowledgment pages. Some courts want the whole instrument; San Diego requires a complete copy filed separately with a coversheet (Super. Ct. San Diego County, Local Rules, rule 4.3.3(J)).
• Title documents. The deed by which the decedent acquired title and every later recorded instrument that touched it. San Diego requires the acquisition deeds and a statement of all encumbrances (rule 4.3.11). A grantor and grantee index search can prove a negative, as in Sample 2.
• Death certificates. Redact the Social Security number to the last four digits, and show only the last four digits of any financial account number anywhere in the filing. (Cal. Rules of Court, rule 1.201.)
• The section 16061.7 notice and its proof of service. It shows the trustee has done the basics, and the current warning language matters (Prob. Code, § 16061.7, subd. (h)).
• Institution records. Statements, a date-of-death balance letter, or the bank’s refusal letter. See chapter 7.

When to add a declaration

The verified petition and the documents usually carry an uncontested matter. Add a declaration when the record has a gap a document cannot fill: a name on the deed that differs from the trust, a schedule page that is missing, a refinance history, occupancy, or a family tree with predeceased children. State evidentiary facts on personal knowledge, not conclusions. An escrow officer or a title officer can be the right declarant for a transaction history; a family member for the family tree.

Records the trustee can obtain

Before anything is filed, the trustee can usually assemble enough to plead the account: mailed statements, year-end tax summaries, a closing letter, or a date-of-death balance letter. Many institutions will confirm the balance and the form of ownership to a successor trustee who sends a death certificate and a certification of trust (Prob. Code, § 18100.5), even when they will not retitle the account. Ask for a letter that states the registration, any payable-on-death or transfer-on-death designation, and the balance on the date of death. Sample 3 pleads the accounts from year-end summaries and two institution letters.

Records subpoenas

Civil discovery rules apply in probate proceedings. (Prob. Code, § 1000, subd. (a).) In a section 850 proceeding, the petitioner may take discovery from anyone who received notice of the hearing under section 851, subdivision (a), including the institution holding the account, on the Civil Discovery Act’s time periods, which “commence to run upon service of the petition and notice of hearing.” (Prob. Code, § 851.1.) For other nonparties, those periods run from service “upon all parties entitled to notice.” (Prob. Code, § 1000, subd. (b).) For a plaintiff, the Act’s waiting period for depositions is 20 days after service (Code Civ. Proc., § 2025.210, subd. (b)); the cautious course treats a records subpoena the same way. The safer sequence is to file, serve everyone entitled to notice, wait 20 days, and then issue the subpoena.

1. Day 0

   Petition and notice served on everyone entitled to notice. Set the hearing far enough out for what follows.

2. Day 20 or later

   Issue the deposition subpoena for business records (form SUBP-010), with an Attachment 3 that describes the records: statements around the date of death, the date-of-death balance, signature cards and any beneficiary designation. The same day, serve the notice to consumer (form SUBP-025) with a copy of the subpoena.

3. 5 days later (10 if mailed)

   Serve the subpoena on the custodian, with the proof of service of the notice to consumer. The notice must precede service on the custodian by at least five days, plus five more if mailed within California. (Code Civ. Proc., §§ 1985.3, subd. (b)(3), 1013, subd. (a), 2020.410, subd. (d).)

4. Production date

   No earlier than 20 days after issuance or 15 days after service of the subpoena, whichever is later (Code Civ. Proc., § 2020.410, subd. (c)), and at least 10 days after the notice to consumer, plus five if mailed (§ 1985.3, subd. (b)(2)). The custodian delivers the records with a declaration under Evidence Code sections 1561 and 1562.

5. Before the notes

   File a verified supplement attaching the records, with account numbers reduced to the last four digits (Cal. Rules of Court, rule 1.201). File it before the probate notes are finalized.

Transfer orders under section 856

When the court is satisfied a transfer should be made, it “shall make an order authorizing and directing . . . 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.” (Prob. Code, § 856.) An order that names the institution and directs the transfer to the trustee avoids a second round of requests to the institution.

Which institutions are served

A bank or brokerage firm holding an account in the decedent’s name has possession of the property, and a lender with a recorded deed of trust claims an interest in it. Both get notice of the hearing and a copy of the petition in the manner of a summons, at least 30 days before the hearing. (Prob. Code, § 851, subd. (a)(2).)

Method of service

For a corporation, deliver the papers to its designated agent for service of process, or to an officer, general manager or other person authorized to receive service. (Code Civ. Proc., § 416.10, subds. (a) & (b).) Other entity types have their own service rules (Code Civ. Proc., §§ 416.10 to 416.50; Corp. Code, § 17701.16 [limited liability companies]).

Finding the agent for service of process

The Secretary of State’s California Business Search, at bizfileonline.sos.ca.gov, shows each registered entity’s status, its agent for service of process and the agent’s address, and the officers named in its statements of information. The search is free. Run it right before you send the papers to the process server, not from an old file.

1. Search the exact legal name.

   Use the name on the account statement, the deed of trust or the latest recorded assignment of it, not the brand on the branch sign. For a lender, look for a recorded assignment first: the current beneficiary may not be the lender that made the loan. If nothing turns up, try the variations, such as “National Association” and “N.A.”, or “Inc.” and “LLC”.

2. Pick the active entity.

   A search usually returns several entities with nearly the same name: an older corporation, a newer LLC with the same words, a company that merged into another years ago. Serve the one whose status is Active and whose exact name and entity type (corporation or LLC) match your institution. If the only match shows Merged Out or Converted Out, find the entity that survived and look that one up.

3. Copy the agent exactly.

   Open the record and read the agent block. Most institutions use a registered corporate agent, such as CT Corporation System or CSC Lawyers Incorporating Service, and the process server delivers to that agent’s office. Copy the agent’s name and address word for word, suite number included, into your instructions to the server and later into the proof of service.

4. Keep a dated copy.

   Agents change. Save or print the record with the date you checked it, so the file shows where the address came from if service is ever questioned.

5. No active agent?

   If the agent has resigned, cannot be found at the listed address, or the institution is not on the site at all, serve an officer or another person authorized to receive service (Code Civ. Proc., § 416.10, subd. (b)); the record lists the officers. If that fails too, ask the court for an order allowing another method, well before the hearing.

Prove service on DE-120(P), naming the entity, the person who accepted the papers, that person’s title, and the address. Orange County requires the petition, a supplement or the proof of service to include those details. (Super. Ct. Orange County, Local Rules, rule 602.01.) Sample 3 serves a bank and a brokerage firm through their registered agent; Sample 4 serves a lender.

Lenders: confirm the asset subject to the lien

A Heggstad order does not change the lender’s security, and the petition should say so. Plead the deed of trust in the asset section, give the lender notice, and ask the court to confirm the property as a trust asset “subject to” the recorded deed of trust by date and document number. The prayer in Sample 4 does this.

If a foreclosure sale is already scheduled, the petition alone will not stop it on time. That situation calls for separate emergency relief.

Contents of the order

• It stands alone. Identify the petition, the petitioner and capacity, the trust by name and date, and the hearing date, time and department. Do not incorporate the petition by reference.
• Findings. Notice was given as required by law and the allegations are true. Where record title raised the section 662 presumption, add a finding that clear and convincing evidence shows the property is trust property.
• The asset, described for its reader. For real property: the street address, the assessor’s parcel number and the full legal description, with every parcel of a condominium description. For accounts: the institution and the last four digits.
• The operative language. The decedent’s right, title and interest in the asset is an asset of the trust, to be held, administered and distributed by the trustee under the terms of the trust; subject to any recorded encumbrance; and, where a holder must act, a direction to transfer (Prob. Code, § 856).
• A signature page with text on it. Keep substantive text above the judge’s signature and nothing after it.

Every county’s rules are in County local rules (chapter 14). When e-filing, attach the order to form EFS-020 and e-mail an editable copy to the address the court designates, copying all parties. (Cal. Rules of Court, rule 3.1312(c).)

Section 851, subdivision (d)

Section 851, subdivision (d), says: “The court may not shorten the time for giving the notice of hearing under this section.” So the court cannot shrink the 30 days. The argument for ruling sooner is that it does not have to: when everyone entitled to notice has waived it in writing (Prob. Code, § 1204), no notice remains to be given, so granting the petition early shortens nothing. The court is only deciding an uncontested petition before its scheduled date. Sample 5 makes the argument in both the petition and the ex parte application.

That argument needs every person entitled to notice, including heirs who stand in for the decedent (Prob. Code, § 17203, subd. (c)), and anyone claiming an interest in the property. One missing signature ends it. File the petition with an ordinary hearing date as a fallback.

The contrary view in some courts

Not every court accepts the argument. Some treat section 851 as meaning that a section 850 petition can never be heard sooner than 30 days after it is filed, whatever has been waived; in our experience Riverside is one of them. As far as we know, no appellate court has decided the question either way. We make the argument in every ex parte application anyway, because the statute’s text supports it: section 851 counts its 30 days back from the hearing to the service of notice, not from the filing of the petition, and section 1204 lets each person entitled to that notice waive it. Where a court takes the other view, the fallback hearing date is what you will get, so ask for the earliest date the 30 days allow.

County practice

County local rules (chapter 14) has the ex parte rules for every county that has them.

Contents of the application

• Every consent and waiver, signed and filed, and a statement that no one has requested special notice (Prob. Code, § 17204).
• Evidence of the urgency on personal knowledge: the purchase agreement, the title company’s requirement, the lender’s deadline, the notice of trustee’s sale. A listing agent or escrow officer is often the right declarant.
• A declaration of notice of the ex parte application itself, in the form the county requires.
• A self-contained proposed order, and any county coversheet or checklist.

Probate notes and supplements

Most courts post an examiner’s notes or a tentative ruling before the hearing, listing anything missing. Cure the items with a verified supplement before the county’s cutoff, and many courts will approve the matter without an appearance. Miss the cutoff and the usual result is a continuance.

Appearances

Many courts excuse appearances on matters the notes recommend for approval, but an objection made at a hearing you skipped usually produces a continuance. Remote appearance rules vary: Alameda requires a filed notice of remote appearance (form RA-010) for probate hearings (Super. Ct. Alameda County, Local Rules, rule 1.90(b)(2)), while San Francisco allows remote appearance at non-evidentiary probate hearings without one (rule 14.1.C). Check the county’s local rules before the hearing.

Objections

An objection turns the petition into a contested proceeding. Issues of fact are tried under the rules for civil actions, and civil discovery is available. (Prob. Code, § 1000, subd. (a).) If the opposing party took or kept property in bad faith, section 859 relief may be in play, and the notice must describe it (Prob. Code, § 851, subd. (c)(2); see item 4 of DE-115). Build the record as if the matter might be contested; it usually is not, but the examiner reads it the same way.

Recording the order

1. Get a certified copy.

   Order it from the clerk once the order is entered. A clerk-certified court order is recordable without an acknowledgment.

2. Add a recording cover sheet.

   A certified order rarely has the reserved space and title placement the first page of a recorded document needs, so a cover sheet becomes page one (Gov. Code, §§ 27361.6, 27324). Use the order’s exact title. Samples 1, 2, 4 and 5 each include one.

3. File the PCOR with it.

   The preliminary change of ownership report is completed and signed by the transferee, here the trustee, not by counsel as agent. Without it, the recorder may charge an additional $20. (Rev. & Tax. Code, § 480.3.)

4. Address transfer tax and recording fees.

   A Heggstad order confirms title; it is not a sale. Counties typically accept a $0 documentary transfer tax statement citing Revenue and Taxation Code section 11930 (transfers by gift or by reason of death) or section 11911 (the tax reaches realty that is sold, and nothing is sold), and practice varies; Los Angeles lists both grounds on its exemption notice, and San Francisco requires its own transfer tax affidavit. The $75 SB 2 recording fee applies unless an exemption in Government Code section 27388.1, subdivision (a)(2), fits. City transfer taxes are separate.

Proposition 19

If a child will keep the house as a principal residence, the parent-child exclusion may preserve part of the parent’s assessed value. The claim is form BOE-19-P, timely if filed within three years after the date of transfer, which for a trust at death is the date of death, or before the property is transferred to a third party, whichever is earlier. The home must become the transferee’s principal residence within one year, and the transferee must claim the homeowners’ exemption within one year. For transfers from February 16, 2025, through February 15, 2027, the exclusion is limited to the factored base year value plus $1,044,586. (Cal. Const., art. XIII A, § 2.1; Rev. & Tax. Code, § 63.2.)

Accounts

Send the institution a certified copy of the order, a certified death certificate and a certification of trust (Prob. Code, § 18100.5), to the department that processes estate transfers. An order that directs the institution to transfer (Prob. Code, § 856) leaves less to negotiate.