December 5, 2012

Heggstad Petition - Is an Attorney Required?

A very common trust administration procedure is a Heggstad petition. See Probate Code § 850. Many unrepresented people who write a trust often forget to transfer the home they own to the trust. When the person passes away and the trustee seeks to sell the home, they encounter the fact that the home is still in the settlor's name and not in the trust's name. Herein the Heggstad petition comes into play.

A Heggstad petition seeks to obtain a court-order that finds that the home is a trust asset. The best piece of evidence to include in a Heggstad petition is a declaration of trust stating that the home is a trust asset. This is customarily found at the end of the trust document, i.e. Schedule A or Exhibit A. As mentioned, if the petition is granted, the home becomes part of the trust and the trustee may dispense of the property as the trust dictates. If the petition is not granted, the home will likely have to be probated which is a costly and lengthy legal process in California.

A person is free to act as his own lawyer. Famous court cases have involved litigants who acted as their attorney, e.g. Gideon v. Wainwright, 372 U.S. 335 (1963) involved an indigent prisoner successfully appealing his criminal conviction to the United States Supreme Court.  Although there is the old adage that goes "a self-represented attorney has a fool for a client."

However, a person is not free to act as a lawyer for somebody else. A California court held that a trustee, who was not an attorney, could not represent the trust in regards to a lawsuit involving the sale of a mobile home to the trust. Ziegler v. Nickel (1998) 64 CA4th 545. The court found that the trustee would be representing the interests of other parties, i.e. the beneficiaries.  Since representing others constituted the practice of law, he was required to have a law license. Bus & P C § 6125. Whereas the trustee did not have a law license, the lawsuit was dismissed.

In regards to a Heggstad petition, since the trustee would be representing the interests of others, rather than themselves, arguably they are required to have a law license to file the petition.