You found the binder. It was on the shelf in your parents’ office, exactly where they said it would be — the trust, properly signed and notarized, dated years ago. You walked into the meeting feeling like at least this part had been handled.
And then someone, the bank, an attorney, the title company, told you the estate is going to probate anyway.
I have sat across from this conversation more times than I can count. The adult child is grieving and confused, because the entire point of having a trust was that this would not happen. Let me explain what most likely went wrong.
A trust is only as good as what’s inside it
A revocable living trust does not automatically own anything. Signing the trust creates the container. It does not put anything in it.
For the trust to actually control an asset, the title on that asset has to be changed into the name of the trust. The new grant deed on the Woodland Hills house, transferring the property to the living trust, has to be recorded with the County Recorder. My office always drafts and records that grant deed. But what if a few years later the clients refinance the property and the bank requires the property to be titled in their individual names? The clients are supposed to transfer the property back into the living trust at the close of escrow but don’t. At their deaths, the property is not titled in the trust. The brokerage and bank accounts also have to be retitled. This is what attorneys mean by funding a trust.
If your parents signed their trust ten years ago and never changed the deed on the house, then for legal purposes the house was never in the trust, it was still owned individually. And anything owned individually at death, above California’s $208,850 small-estate threshold, goes to probate in California. The trust in the binder is, in that sense, an unfunded promise.
This is the most common estate planning failure I see. It’s almost never a drafting problem, almost always an implementation problem. If you want to understand how a plan is meant to hold together, our [LINK → Trust Administration & Probate Hub] walks through what proper trust administration looks like.
Why this is personal for me
During my second year of law school, my grandfather passed away. He had an estate plan prepared by an attorney. The documents were properly signed and filed. And the family was still forced into a costly, time-consuming probate process, because the assets had never been transferred into the trust.
The documents existed. The plan had failed.
That is the reason I do not consider an engagement complete until every plan is fully implemented — documents drafted, assets retitled, accounts coordinated. You can read more about how and why I practice this way on our About The Firm page. What happened to your family is not unusual, and it is not your parents’ fault.
What this costs
California probate is expensive; more than most families expect. On a $1 million estate — not unusual for a West Valley homeowner — the statutory attorney and executor fees together come to roughly $46,000, before court costs, publication, or bond. It typically takes twelve to twenty-four months. And it is entirely public.
What is a Heggstad Petition — and can it help?
If you are reading this after a parent has passed and just discovered an unfunded asset, the situation is not always lost. California recognizes a remedy called a Heggstad Petition — a court petition asking a judge to confirm that an asset belongs in a living trust even though it was never formally transferred. It requires that the trust was drafted with clear intent to include the asset.
I have used this petition many times to spare families from full probate on specific assets. Where it works, it is the difference between a months-long court process and a single, targeted filing.
Key Takeaways
- A signed trust does not avoid probate on its own — the assets must actually be transferred into it.
- A home left titled in an individual name at death, above California’s $208,850 small-estate threshold, goes to probate.
- Refinancing is a common way a home quietly falls back out of the trust and is never returned.
- Probate on a $1 million estate can run roughly $46,000 in statutory fees, take twelve to twenty-four months, and is public.
- A Heggstad Petition may bring an unfunded asset into the trust after death — if the trust showed clear intent to include it.
If you are not sure where you stand
If there’s a binder on the shelf, that’s a good start. Schedule a consultation, and we’ll walk through it together to make sure it’s everything it needs to be.
Call 818-292-8160, or get a free consultation. We’ll walk through it together.