Heggstad Petitions: Fixing Title After a Claremont Death

Some families do everything right and still end up in court. A parent sets up a living trust precisely so the house will not go through probate, signs the documents, and then — through an oversight, a refinance that took the property out and never put it back, or a purchase made after the trust was created — the deed never actually names the trust.

The trust exists. The intent is documented. But the title says the house belongs to a person who has died, and that is a probate problem. California law provides a route for this situation, commonly called a HEGGSTAD PETITION after the appellate case that made the approach widely known. This article explains what that route is at a concept level, when it tends to fit, and what the family should do first. It deepens the probate guide. General information only — this is squarely attorney territory, and no article can tell you whether your facts qualify.

The problem it addresses

A living trust only avoids probate for the assets that are actually IN it. Transferring assets into the trust is called funding, and an unfunded or partially funded trust is one of the most common disappointments in estate administration: the documents are immaculate and the house is still in the decedent's individual name.

How it happens is rarely negligence. A property is refinanced and the lender requires it be taken out of the trust; the transfer back never happens. A home is purchased after the trust is created and the deed is simply taken in the buyer's own name. An attorney prepares the deed and it is never recorded. A parent updates a trust years later and moves house without revisiting title.

The consequence is that, absent some remedy, the property may need to be administered through probate — the outcome the trust was created to avoid, with the time and the court supervision that involves. The do you need probate guide covers when probate is and is not required for a California home.

What a Heggstad petition is

California's Probate Code contains a petition procedure for determining whether particular property belongs to a trust, and for ordering the transfer or confirmation of that property to the trustee. Petitions brought under that procedure to confirm that an asset the settlor intended for the trust is trust property are commonly called Heggstad petitions.

The concept is that the court is asked to look at the evidence of the settlor's INTENT — the trust instrument, its schedules, an assignment of assets, correspondence, an unrecorded deed, the pattern of how other property was handled — and to confirm that the property is, in substance, trust property despite the missing title transfer.

Three things to hold onto. It is a COURT PROCEEDING, with a petition, notice to interested parties, and a hearing — quicker and narrower than a full probate administration, but not a form to fill in. Whether it succeeds turns entirely on the evidence, and no honest professional will predict what a court will decide on facts they have not reviewed. And the statutory procedure and case law in this area develop over time, so verify the current code and current practice with California counsel rather than relying on what worked for someone else's estate.

When it tends to fit, and when it does not

The pattern that lends itself to this route is a real, validly created trust; clear documentary evidence that the settlor intended this specific property to be part of it; and a title problem that is genuinely clerical in character rather than a change of mind.

The pattern that does not is thinner. There is no trust, only an intention to make one. The evidence of intent as to this particular asset is weak or absent. The property was deliberately kept outside the trust. Or interested parties disagree about what the settlor wanted, in which case what looked like a paperwork fix becomes a contested matter and the family is somewhere different entirely.

Note also that this is not the only mechanism California law provides for transferring property after a death without full administration, and which route fits depends on the facts. An attorney evaluating the whole picture — the trust, the deed history, the other assets, the family — is the person who identifies the right one.

What the family should do first

GATHER THE PAPER before the meeting. The complete trust instrument and every amendment. Any schedule of trust assets or general assignment of assets. Every deed in the property's history, including any that were prepared but never recorded. Refinance documents. The estate planning attorney's file, if it can be obtained. Correspondence in which the parent described their intentions.

DO NOT RECORD ANYTHING on your own. The instinct to sign a deed transferring the property to the trust after the fact is understandable and can create a serious problem. Title is not a form to be corrected informally.

DO NOT LIST OR SELL THE HOME until authority is clear. A property whose title status is unresolved cannot be conveyed cleanly, and escrow will find the defect. Whether the eventual seller is a trustee or a court-appointed representative determines the entire shape of the sale, which is why the who can sell guide is the companion to this one.

DO PROTECT THE PROPERTY in the meantime. Title questions take time to resolve and an empty house does not wait; insurance, security, and basic maintenance need attention from the first week, as the vacant home guide sets out.

What it means for a sale

If the petition succeeds and the property is confirmed to the trust, the trustee generally administers and can convey it under the trust's terms — a materially different and usually simpler path than a court-supervised sale. If it does not, or if the route does not fit the facts, the property is administered through probate and the sale follows the process the probate sale process guide describes, with the authority questions that come with it.

Either way, the sale should wait for the answer. A family that lists a home while title is unresolved is buying a cancelled escrow and a disclosure problem. The right sequence is boring and it works: attorney first, title resolved, authority confirmed, then market.

None of this is legal advice, and nothing here indicates how any court would treat any particular set of facts. Bring the trust, the deeds, and the correspondence to a California probate attorney and let them evaluate the route. Anthony Grynchal has been licensed in California since November 2009.