Poor Descriptions of Trust Property

When a trust does not describe trust property with a detailed description, a successor trustee can still file a Heggstad Petition for the property if extrinsic evidence can identify the property with reasonable certainty.

The key issue in a Heggstad Petition is normally whether the original trustor declared themselves or someone else to be the owner of some property as trustee of a trust. Normally, this declaration can be proven by reference to “Schedule A” of the trust agreement. Schedule A will usually list the real property, accounts, and other property that the original trustor intended to hold in the trust estate. If the trustor forgot to retitle any real property or accounts, a court can order those assets to be legally retitled as trust property pursuant to a Heggstad Petition.

 But even if Schedule A only describes the trust property generally, and not by address or account number, a Heggstad Petition can still be helpful.

In one case from 2015, the original trustee’s Schedule A named “all of his real and personal property” without specifically identifying his house by address or property number. But because the house owned by the original trustee could be identified by reference to publicly available deed records held by the county recorder’s office, such real property could be included in the trust pursuant to a Heggstad Petition.

Claiming ownership of financial accounts that are not identified by account number can be more difficult. But successor trustees have several options to give courts enough information to identify and confirm accounts as trust property. For example, a decedent’s tax returns may reveal unknown accounts and account numbers. Alternatively, if the successor trustee knows where the original trustor banked, the successor trustee can issue a subpoena to the bank for more information.

To locate missing accounts and file a successful Heggstad Petition, it is sometimes necessary to file the decedent’s probate. Although the process to complete an entire probate can take a year or more, a court can appoint a personal representative relatively quickly. As personal representative, the successor trustee can then pursue the bank statements or other records necessary to complete the Heggstad Petition. Once the Heggstad Petition is granted, the probate can be dismissed.