How to Win a Heggstad Petition

Mar 14

What is a Heggstad Petition?

A Heggstad Petition allows a successor trustee of a trust to claim property inadvertently left out of a trust.

Most commonly, Heggstad Petitions are used by successor trustees to claim homes or other real property that were listed in a decedent’s trust but were not properly deeded to the trust in a recorded document. But Heggstad Petitions can also be used to claim other property, such as bank accounts, investment accounts, and personal property, that should have been included among the trust property.

A Heggstad Petition is similar to a regular civil lawsuit. It requires the petitioner to prepare a detailed pleading explaining the basis for the relief request. The petition must identify the trust, the original settlor(s), the successor trustee, the property left out of the trust, a declaration from the settlor(s) that they held the property as property of the trust, and any other facts or explanations necessary to help the court understand why the petition should be granted. For example, with respect to properties removed from a trust because of a refinancing after the creation of the trust, the petition should explain the general circumstances of the refinancing and include copies of the relevant deeds as exhibits. With respect to bank accounts listed in a trust but not transferred to the trustee’s ownership, the petition should include statements from before the trust was created to prove that the account was active at the time the trust was executed.

Who can file a Heggstad Petition?

A Heggstad Petition should be filed by the successor trustee to the decedent’s trust. Often, this person is a surviving spouse or child. An heir or beneficiary of a trust may file a Heggstad Petition in some situations, but should generally defer to the successor trustee unless the successor trustee is clearly neglecting their fiduciary duties.

In rare circumstances, a Heggstad Petition will be brought by someone other than the successor trustee. Under the Probate Code, almost anyone with a legitimate interest in the trust and the subject property may file a Heggstad Petition. For example, a beneficiary of a trust may file a Heggstad Petition to claim property that is meant to be specifically distributed to them. In some cases, the buyer in a real estate transaction may file a Heggstad Petition to meet requirements for obtaining title insurance, although that circumstance presents potential issues that should be addressed with an attorney.

Where should a Heggstad Petition be filed?

It can be tricky to determine which court has the authority to hear a Heggstad Petition. In trust cases generally, petitions concerning the trust should be filed in the county where the day-to-day business of the trust is conducted by the trustee. Normally, that is the county where the trustee lives. So, even if all of the trust property is located in Alameda County, if the trustee lives in San Luis Obispo County, petitions and lawsuits concerning the trust should be filed in San Luis Obispo Superior Court.

Unlike petitions to probate an estate, venue for a Heggstad Petition does not depend on the decedent’s residence. In recent years, courts have become increasingly strict about compliance with venue rules. Many petitioners have had their Heggstad Petitions delayed by months because they filed in the wrong county (usually the county of death instead of the county where the trustee conducts day-to-day business).

The basis for venue should be stated clearly, near the beginning of the petition. In most petitions, the basis for venue will be the trustee’s residential or business address in the county. In that case it is generally sufficient to state that address and allege that the day-to-day business of the trust takes place at that address, regardless of where the assets of the trust are located or where the decedent lived when they died.

Selecting a county for filing your Heggstad Petition may have strategic importance and you should consult an attorney before assuming where your case will need to be filed.

What documents should be filed with a Heggstad Petition?

Despite the relative simplicity of Heggstad Petitions, even uncontested petitions should be accompanied by considerable evidence and documentation.

A Heggstad Petition should generally include copies of the following: the decedent’s trust, the decedent’s last will, any current title documents to the relevant property (including the most current deed or financial statement), any communications with current beneficiaries about the property, the successor trustee’s notice to beneficiaries pursuant to Probate Code 16061.7, and any other documents that will help the court conclude that the property really is property of the trust.

In addition to filing evidence to support the petition, the trustee will also have to provide formal notice of the petition and any hearings to the beneficiaries and anyone with an interest in the trust property. Generally, that will include the decedent’s family (to the extent they are not already beneficiaries of the trust), any persons named as successor trustees or executors, and anyone else who owns (or claims to own) an interest in the subject property. It may be required to give notice to current tenants of any property, but that decision may require consultation with an attorney and review of the lease agreement.

How long does the Heggstad Petition take?

Heggstad Petitions will generally take 2 to 8 months. After the trustee files the Heggstad Petition, the court will assign a hearing date, normally 2 to 6 months later. The trustee, or the trustee’s attorney, then sends formal notice of the hearing to all parties and files proof of service of those notices with the court.

About a week before the hearing, the court will generally issue requests for further information to the trustee or the trustee’s attorney, regarding any matters that require further clarification.

The time required for a Heggstad Petition is largely dependent on the court’s schedule. In some counties, hearings can be set out 6 months or more from the date of the original filing.

What happens after a Heggstad Petition is granted?

After the Heggstad Petition is granted, the court will issue an order confirming that the subject property belongs to the trust. The successor trustee can then record that document (if it relates to real property) or present it to the bank or financial institution as proof that the successor trustee may control the property pursuant to the terms of the trust.

Why should I seek a Heggstad Petition instead of a probate?

Time and money. If the decedent left a “pour-over will” directing that any property left out of the trust should be distributed to their trust, it is possible to achieve the same result as a Heggstad Petition through a formal probate. But the probate process is almost universally lengthier and substantially more expensive than a Heggstad Petition. The probate process requires, among other things, notice of the probate of the estate in a local paper, an appraisal, and multiple court hearings. The costs to probate even a simple estate that includes a home can exceed $10,000 and take a year or longer.

In contrast, nearly all Heggstad Petitions can be resolved in 2 to 6 months and at a fraction of the cost.

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Schedule an appointment today for a free consultation. The Law Office of Ravi Patel provides Heggstad Petition services on a contingent, flat fee basis. Save time, save money, and claim the inheritance to which you are entitled.

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