In estate planning, ensuring assets are properly titled to avoid probate is critical. One of the tools that can help achieve this goal is the "Heggstad Petition," a procedure that has become indispensable in California. I am fortunate to have had the opportunity to work with the attorney who invented this petition—someone who later became my friend and mentor. Here's a bit about the history of the Heggstad Petition and how it can be applied today.

A Historical Perspective

The Heggstad Petition originated from the need to fix an often-overlooked issue in estate planning: what happens when assets that should have been transferred into a trust were never formally re-titled? Before the Heggstad Petition, such mistakes often forced estates into probate, even when the decedent's clear intention was to avoid it by using a trust. The Heggstad Petition, named after the case Estate of Heggstad (1993) 16 Cal.App.4th 943, changed all that.

In this landmark case, the court ruled that if an asset was not formally titled in the trust's name but the decedent had clearly intended to transfer it, a petition could be filed to correct the title. This decision laid the foundation for what is now widely known as the Heggstad Petition.

I had the privilege of working closely with the attorney who initially developed and filed this petition. Not only did he teach me invaluable legal strategies, but he also became a mentor, shaping much of my approach to estate planning. His ingenuity in creating this solution has saved countless families from the costs and delays of probate.

How Does the Heggstad Petition Work?

In practice, the Heggstad Petition allows a trustee or beneficiary to petition the court to declare that certain assets—usually real property or bank accounts—belong to the trust, even if the paperwork does not perfectly reflect that. The petition is usually filed after the death of the person who established the trust (the settlor).

For instance, if a settlor intended to transfer a property into their trust but failed to deed the property over correctly, the Heggstad Petition can be filed to correct this error. The court will assess the decedent's intent by looking at the trust documents and other evidence, and if the intent to transfer the asset is clear, the court can order the asset to be treated as part of the trust.

When Is It Used?

The Heggstad Petition is typically used in situations where:

1. Assets are not titled in the trust's name: Often, families discover that while the trust exists, some assets were never formally transferred into it. The petition serves as a remedy to ensure those assets avoid probate.

2. Mistakes in titling: Errors during the funding of the trust, such as incomplete or incorrect paperwork, can be corrected using a Heggstad Petition.

3. Preventing probate: Since probate can be lengthy and expensive, this petition helps ensure assets go where they were intended without going through the probate process.

Practical Considerations

While the Heggstad Petition is a powerful tool, it's not a quick fix for all estate planning issues. Courts typically require substantial evidence of the decedent's intent, which means meticulous records and trust documents are vital. Additionally, the petition can only address certain types of assets—most commonly real estate and financial accounts.

As an estate planning attorney, I encourage my clients to avoid the need for a Heggstad Petition by being diligent during the trust funding process. However, should mistakes arise, this petition offers a practical and effective solution.

Conclusion

The Heggstad Petition has become a cornerstone of California estate planning law. It allows families to avoid unnecessary probate and ensure that assets are distributed according to the decedent's wishes. I'll always be grateful for the time I spent working with the attorney who pioneered this petition. His legacy lives on, and it's a privilege to continue using this tool to help clients navigate their estate planning needs.

LEGAL DISCLAIMER

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