What happens at a Heggstad Petition hearing?
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.
Once your Heggstad Petition is written, verified, and filed, you will be given a hearing date. The hearing is the critical event in the case. In many cases, the court will grant the Heggstad Petition at the first hearing, if the petitioner’s evidence is properly verified and proves the matters alleged.
Before the hearing: probate notes
In most counties, a probate examiner or research attorney reviews the petition before the hearing and posts notes listing anything that is missing: a proof of service, an exhibit, a question about how the trust describes the property. The timing varies. In Orange County, notes typically post several weeks ahead; in Riverside, examiners review about ten days out and finalize their notes three court days before the hearing. Clearing the notes with a verified supplement before the deadline is usually what decides whether the petition is granted at the first hearing. The county rules chapter of our Heggstad practice guide lists each court’s timing.
At the hearing
At the hearing, the judge will start by confirming whether everyone entitled to notice of the petition has received such notice. If anyone has not received notice, the judge may give you an opportunity to submit a waiver, if you have a properly signed and verified waiver ready to present or filed before the hearing. If proper notice has been given, then the judge will consider the substance of your petition. The judge will want to see that you have submitted evidence with your petition proving that the subject property was supposed to be in the decedent’s trust. In most cases, the key evidence will be a “Schedule” to the trust listing the subject asset. If the subject asset is a house, it is usually a good idea to submit the most recent deed. If the subject asset is a bank account, it is usually a good idea to submit a recent bank statement. In all cases, a death certificate and a copy of the subject trust must be submitted.
Many courts do not require anyone to appear when the notes recommend approval; others call every matter. Many probate departments also allow remote appearances. Check the department’s rules a few days before the hearing.
If the judge has concerns
If the judge has concerns about your petition, they will most likely give you a continuance of 30 to 60 days to fix any issues, submit new evidence, and come back for a second hearing. You might even get a third chance. But after that, the judge will consider denying the petition for lack of evidence.
After the ruling
Some courts sign the order at the hearing. Others, including Los Angeles and Orange counties, have you submit the proposed order after the ruling, and it can take a few weeks to come back. Once it does, record a certified copy in the county where a house is located, and give a copy to any bank holding an account. Our article on how long a Heggstad petition takes covers the full timeline.
To prepare for the whole process (not just the hearing), see our complete Heggstad petition guide.