November 20, 2009

Heggstad petition

When drafting a living trust, one of most important steps is to fund the trust. 

What this means is that you need to transfer assets into the trust. For example, if you owned a home and wanted to place it into a trust, you would need to execute a deed transferring title from you to the trust. It is not uncommon to find people who establish trusts but do not properly fund it. This can lead to considerable expense because a home not transferred into a trust will most likely end up in probate, which will cost the person's family thousand of dollars. Fortunately, there is a procedure to transfer a house into a trust even after the trust drafter has died.

This process is called a Heggstad petition and it involves a probate court transferring title of the home to the trust, provided that it can be shown that the person who wrote the trust did, in fact, place the home into the trust. The best evidence for this is a schedule of assets found at the end of the trust document, in which the person who wrote trust lists the assets that are now held in trust. The name Heggstad petition is the name of the case where this procedures traces its roots, Estate of Heggstad (1993) 16 CA4th 943. This procedure can save considerable expense for the family because the house would not be subject to probate if a Heggstad petition is successfully processed.