A parent has passed. You are the successor trustee, doing your best to settle everything, and then you find it. An account, or maybe the house itself, that was never actually transferred into the trust. It is titled in your parent’s individual name.
Your first thought is that you are now facing full probate on that asset. Often, you are not. California recognizes a remedy for exactly this situation, and used correctly it can be the difference between a single targeted court filing and a year or more of formal probate.
What a Heggstad petition actually is
A Heggstad petition in California is a request that asks a judge to confirm that an asset belongs in a living trust, even though the title was never formally changed into the trust’s name. It takes its name from a California case, and the legal authority sits in Probate Code Section 850.
The idea behind it is straightforward. If your parent clearly intended a particular asset to be part of their trust, but simply failed to complete the paperwork to retitle it, the court can recognize that intent and treat the asset as trust property. It works because of choices made back when the foundational estate plan was drafted, not after the death. Instead of opening a full probate estate for that one asset, you bring a focused petition, and if the judge grants it, the asset is confirmed as part of the trust.
Think of it as a way to fix a title that got left undone, rather than a way to rewrite what your parent wanted.
When it can save your family, and when it cannot
A Heggstad petition is not automatic, and it does not work in every situation. It succeeds when there is real evidence that the asset was meant to be in the trust. Two things matter most, and a well-drafted plan includes both.
- A pour-over will. This is a companion document to the trust that directs any asset left outside the trust at death to be transferred to the successor trustee of the trust. It shows the court that your parent’s overall intent was for everything to end up in the trust.
- A Schedule A listing intended assets. This is the schedule attached to the trust that lists the property meant to be held in it. When the asset in question appears on that schedule, it is strong evidence of intent.
When both of those exist and point clearly to the asset, a judge has a solid basis to grant the petition. When they are missing, or when the evidence of intent is thin, the outcome is much less certain, and the family may be looking at probate after all. I am always honest with families about this. A Heggstad petition is a powerful tool, but it depends entirely on what the original plan documents show.
A real example of why timing is not everything
One situation stays with me. A client signed his trust documents, and he died the next day. In the time between signing and death, there was simply no opportunity to transfer his financial accounts, worth several million dollars, into the name of his trust.
By the ordinary logic of trust funding, that money was headed to probate. But the plan had been drafted correctly. There was a pour-over will directing his probate estate to the successor trustee, and a Schedule A listing the intended assets. I filed a Heggstad petition demonstrating his clear intent and the impossibility of completing the transfer in the time he had. The petition was approved. The accounts passed into the trust. The beneficiaries avoided many months of waiting and saved significantly on fees compared to a full probate proceeding.
The lesson is not that a Heggstad petition rescues every unfunded asset. It is that the documents you sign today determine whether this remedy is even available to your family later. If you want to understand how the pieces fit together, the work of trust administration and probate is where all of this actually plays out.
Key Takeaways
- A Heggstad petition asks a California court, under Probate Code Section 850, to confirm that an asset belongs in a trust even though it was never formally retitled.
- It can avoid opening full probate for a single asset that was left out of the trust.
- Success depends on evidence of intent. A pour-over will and a Schedule A listing intended assets are the two most important pieces.
- It is not guaranteed. When evidence of intent is weak, the family may still face probate.
- The remedy is only available if the original plan was drafted with the right documents in place, which is decided when the trust is created, not after a death.
If you have found an asset that was left out
If you are settling a parent’s trust and have discovered an asset in their individual name, do not assume probate is your only path. Bring the trust, the will, and the account or deed in question, and let’s look at whether a Heggstad petition fits your situation.
And if you are reviewing your own plan, this is exactly the kind of detail worth checking now, while it is easy to fix. Book a call and bring your questions.