When someone passes away, one of the first things their loved ones do is look to the estate plan for guidance. Ideally, everything has been carefully organized and funded into a living trust, allowing the family to avoid probate. But what happens when an asset was meant to be in the trust… but isn’t?
This is where a legal tool called a Heggstad Petition can be incredibly valuable—yet many people don’t even know it exists.
What Is a Heggstad Petition?
A Heggstad Petition is a legal filing that asks the court to confirm that an asset (like a house, bank account, or investment) is actually part of a trust, even if it was never formally transferred into the trust’s name. The petition is based on a 1993 California court case, Estate of Heggstad, where the court allowed a trust to claim ownership of property the decedent had listed on their schedule of trust assets, despite not changing the title before their death.
Why Is It So Helpful?
- It Can Avoid Probate
Probate can be time-consuming, expensive, and public. If a major asset (such as real estate) wasn’t retitled into the trust before the trustmaker’s death, that asset typically must go through probate. A successful Heggstad Petition sidesteps this process by having the court declare the asset part of the trust. - Saves Time and Money
Compared to a full probate proceeding, a Heggstad Petition is faster and more cost-effective. It also allows the trustee to administer the trust more smoothly without being bogged down by court oversight. - Preserves the Intent of the Trustmaker
Most often, the trustmaker intended to include the asset in the trust but simply didn’t complete the paperwork. The Heggstad Petition helps ensure their wishes are honored. - Useful for Real Estate and Business Interests
These types of assets are commonly missed in trust funding. A Heggstad Petition is often used to bring real property, LLC memberships, and similar interests into the trust after death.
So Why Don’t More People Use It?
Despite its benefits, many families fail to pursue a Heggstad Petition—often because they simply don’t know it’s an option. Here are a few common reasons:
- Lack of Awareness: Most people don’t realize that this legal remedy exists. Even some attorneys without estate planning experience may not mention it as an alternative to probate.
- Assuming Probate Is the Only Path: When a title isn’t in the trust’s name, many assume probate is mandatory. They may start down that road without exploring other avenues.
- Unclear or Incomplete Estate Documents: If the trust doesn’t have a detailed Schedule A or asset list, it may be harder to prove the asset was intended to be part of the trust. Families may be told there’s “no case” when in reality, a carefully prepared petition could succeed.
- Fear of Litigation: If other heirs or beneficiaries may contest the claim, people sometimes avoid a Heggstad Petition to minimize conflict. However, with proper documentation and representation, many petitions succeed without a challenge.
Final Thoughts
A Heggstad Petition can be a game-changer in preserving a family’s estate plan and avoiding unnecessary probate. If your loved one had a trust but left assets outside it, don’t assume it’s too late. Talk to an experienced estate attorney about whether a Heggstad Petition is an option.
Knowing your options is the first step toward honoring your loved one’s wishes—and saving time, money, and stress in the process.
