When a loved one passes away, it often falls on grieving family members to sort through their estate. One of the most frustrating and legally complicated problems arises when an asset that was supposed to be in a trust—such as a home, bank account, or investment—was never formally transferred into it. This oversight can delay administration, trigger probate, and spark conflict among beneficiaries. But in California, there’s a powerful legal remedy: the Heggstad petition.
Named after the landmark case Estate of Heggstad (1993) 16 Cal.App.4th 943, a Heggstad petition allows beneficiaries to avoid probate and bring assets back into the trust without having to rewrite the trust, sue the trustee, or start the process from scratch. This procedure is now encompassed by the broad relief offered within California Probate Code section 850, and can be the difference between a smooth resolution and years of costly litigation.
At Trust Law Partners, we use Heggstad petitions regularly to protect clients’ rights and prevent costly mistakes from turning into permanent losses. Here’s what you need to know.
The Problem: Assets That Never Made It Into the Trust
Trusts are only effective for assets that are actually funded into them. If property, such as real estate or a financial account, is not titled in the name of the trust—or if no paperwork exists to indicate the settlor’s intent to transfer the property—then that asset may not be governed by the trust’s terms.
This happens more often than you might think. A person may create a valid trust, sign it, and even have it notarized. But if they forget to execute a deed for their house, or never retitle a brokerage account, that property remains outside the trust. When they die, it’s treated as part of their probate estate.
This can cause major problems. The default laws of intestate succession may apply, distributing the property in ways that directly contradict the trust’s stated wishes. Even when a will exists, the heirs might still face a long and expensive probate process.
In these moments, families are left asking: Can anything be done to correct this mistake?
The Solution: What Is a Heggstad Petition?
A Heggstad petition is a legal request filed in probate court to confirm that property was intended to be part of a trust—even if the proper transfer paperwork was never completed. This allows the court to recognize the asset as part of the trust, bypassing the need for probate and making sure the assets go to the right beneficiaries.
The core argument behind the petition is simple: The decedent made clear they wanted the asset to be held in the trust, even if they failed to complete a formal title change. When supported by the right documentation and legal analysis, the court will often grant the petition.
This process was first recognized in the 1993 Estate of Heggstad case. In that matter, the decedent had created a trust and listed certain real estate in a schedule of trust assets—but never recorded a deed transferring the property into the trust’s name. The court still found that the settlor’s intent was clear enough to make the property part of the trust. That precedent now benefits families across California.
When Heggstad Petitions Are Most Effective
Heggstad petitions are most commonly used when a revocable living trust has been properly executed, but one or more assets were never formally transferred into it. The most frequent scenarios include:
- Real estate that was listed in the trust documents but not deeded into the trust
- Bank or brokerage accounts that were never retitled in the trust’s name
- Business interests such as LLCs or closely held corporations
- Tangible personal property that was substantial enough to require clarification
If there’s some written evidence that the settlor intended to include the property in the trust—such as a general assignment, schedule of assets, or even notes to an estate planner—the petition is more likely to succeed.
However, not every case qualifies. If there is no documentation at all, or if another party has a competing claim to the asset, the petition may fail. The court’s decision often comes down to how well the facts are presented and how credible the trust-related documents are.
Legal Standard and Process Under Probate Code Section 850
California Probate Code section 850 authorizes interested parties to petition the court for an order transferring property into a trust. This is the statutory foundation for a Heggstad petition. The law allows the court to resolve disputes or correct omissions regarding ownership or title of assets.
Here’s how we typically pursue Heggstad relief on behalf of our clients:
- File a verified petition with the probate court identifying the asset and explaining why it should be included in the trust.
- Provide supporting evidence, including the trust itself, and any schedules, assignments, or correspondence that indicate the settlor’s intent.
- Notify interested parties, such as heirs, beneficiaries, or other persons who might have a claim to the asset.
- Attend one or more hearings during which the court may hear objections and arguments, and review the submitted materials or other evidence.
- Obtain an order confirming that the asset is part of the trust.
This is not a quick fix. The petition must be carefully prepared and supported by a strong factual and legal foundation. But when done correctly, it can save the estate thousands of dollars and months—or even years—of delay.
Strategic Use in Trust Litigation
Heggstad petitions are not just administrative tools. They are often used in the middle of litigation over a trust’s validity or distribution. For example, in a dispute where one heir is claiming the family home is subject to probate, a Heggstad petition can shift the legal posture entirely. If successful, the home becomes trust property, subject to the terms of the trust—not probate.
We also see these petitions used when a trustee is trying to avoid accountability for an asset they were supposed to manage. By clarifying ownership, beneficiaries can force trustees to explain how the property was handled and whether any mismanagement occurred.
In cases of elder financial abuse, Heggstad petitions are sometimes combined with civil claims to bring assets back into the trust after they were wrongfully removed.
How Evidence of Intent Is Evaluated
The key to a successful Heggstad petition is evidence of the settlor’s intent. Courts want to see that the individual meant to include the asset in the trust and took some step—however informal—to make that clear.
Supporting evidence may include:
- A “Schedule A” or exhibit to the trust naming the asset
- A general assignment of property to the trust
- Correspondence with attorneys or financial advisors
- Notes or documents discussing the settlor’s estate plan
While not every asset will be specifically named in the trust documents, a general assignment of assets can sometimes be enough—especially if the document includes language like “all real and personal property owned by me is transferred into the trust.”
In the absence of a formal deed or account change, the court has discretion to decide whether this evidence is persuasive. The quality of your legal presentation matters.
Avoiding the Problem in the First Place
The best-case scenario is not needing a Heggstad petition at all. Estate planners, trustees, and families should take proactive steps to ensure the trust is properly funded from the beginning. This means working with experienced professionals to review deeds, account titles, business records, and other assets to confirm they are legally part of the trust.
Still, even the most careful estate planning can go sideways. People forget, circumstances change, or title companies make errors. When that happens, the Heggstad petition is a critical tool to fix the problem without tearing apart the entire plan.
Trust Law Partners’ Role in Fixing Trust Asset Errors
Our firm has filed and defended against many Heggstad petitions in courts throughout California. We don’t treat them as simple procedural matters. In high-value estates, confirming ownership of even one asset can shift millions of dollars and fundamentally change the structure of a distribution.
We gather documentation, interview witnesses, and build a legal case that tells a clear story about the settlor’s intent. And when the other side challenges the petition, we litigate aggressively.
And sometimes, we help our clients fight to defeat another party’s Heggstad petition, if it is being used to wrongfully deprive our clients of their own rights.
Heggstad petitions often intersect with other issues, such as undue influence, capacity challenges, and financial elder abuse. That’s why it’s critical to work with a firm that sees the full picture and can integrate the Heggstad strategy into a broader litigation framework.
Final Takeaway: A Powerful Tool, Not a Silver Bullet
The Heggstad petition is one of the most important legal tools in California trust litigation. It can preserve family assets, prevent expensive probate, and correct errors that would otherwise defeat the settlor’s wishes.
But it requires precision, evidence, and strategy. Not every mistake can be undone—and not every asset can be brought back into the trust. That’s why working with experienced trust litigators matters.
If you believe an asset was wrongly left out of a trust, or you’re facing litigation over ownership, we can help. Trust Law Partners handles high-stakes trust disputes across California, often on a contingency fee basis. We fight for rightful heirs and beneficiaries to recover what’s been lost—through court petitions, litigation, and negotiation.
Call us today at 833-982-2079 for a confidential consultation.