Heggstad Petitions


A concept we frequently get asked about in probate and trust litigation, is in regard to funding assets to a trust, even after the death of the settler. So, let’s take an example. Say John Smith creates a revocable trust while he’s alive. He indicates in that trust, it’s his desire that his home, his primary residence be an asset of the trust.  But for reasons we don’t know John forgets, while he is alive, to actually place the asset into the trust. He forgets to fund the trust with his home. So, then John passes away and his trust becomes irrevocable. And the successor trustee of his trust, we’ll call her Jane Smith, she wants to know well, what do I do now? John said he wanted his home to be in his trust, but he forgot to put it into his trust. Are we stuck with a probate? Is there anything we can do to still get that home into the trust? And the answer to that question is yes.

There’s a famous case here in California called the Estate of Heggstad. And what probate and trust litigation attorneys will do is file a petition with the court called a Heggstad Petition, indicating that it was John Smith’s desire as expressed in his trust to fund his home to his trust. He just forgot to do it while he was alive. So, we think it’s appropriate Your Honor, to sign an order indicating that because of John Smith’s express desires, it’s appropriate to fund the trust even though he’s passed away with his home.

These Heggstad petitions are very useful to posthumously fund assets to trusts to avoid the expense and the prolonged time needed to probate in the state. So again, a very useful tool that we frequently use in our probate and trust litigation practice; A Heggstad Petition to fund assets to trust even though the person that created the trust, the settler, has passed away.

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