California Heggstad Petition: How to Fix an Unfunded Trust Without Full Probate

Your parent established a living trust specifically to keep the house out of probate. Then they refinanced the mortgage five years ago, the lender required the deed to come out of the trust temporarily, and nobody put it back. Now they've died, the house is technically in their name alone, and the trust attorney is telling you that a property that was always meant to be in the trust is now subject to an 18-month formal probate.

This is one of the most common scenarios in California estate administration, and it has a specific legal remedy: the Heggstad Petition.

What Is a Heggstad Petition?

A Heggstad Petition is a court petition brought under California Probate Code Section 850. It asks the Superior Court to issue an order declaring that a specific asset—typically a piece of real estate—is trust property, even though the title documents show it in the decedent's name alone.

The petition is named after the 1993 California Court of Appeal case Estate of Heggstad, which established the principle that a property can be treated as a trust asset if the decedent clearly intended it to be in the trust. That intent is typically demonstrated by the trust document itself—specifically, a Schedule of Assets (sometimes called "Schedule A") attached to the trust instrument that lists the property by address.

The legal basis is straightforward: the trust document is evidence of the decedent's intent. If the trust says "I transfer my home at 123 Main Street to the XYZ Family Trust," but the recorded deed still shows the property in the decedent's personal name, the court can recognize the trust's interest despite the title defect.

When Does a Heggstad Petition Apply?

The petition is appropriate when all of these conditions are true:

1. The decedent had a validly executed revocable living trust
2. The trust document or an attached schedule expressly identifies the asset as trust property
3. The decedent either never transferred the property into trust, or transferred it out (e.g., for refinancing) and never transferred it back
4. No third-party rights have intervened that would complicate the trust's claim to the property

Common triggering scenarios:

• Property excluded from a deed during mortgage refinancing, which is extremely common in California
• A secondary property or investment account added after the trust was created but never formally retitled
• Recently acquired property that the decedent intended to add but died before completing the paperwork

The Heggstad Petition does not work if:

• The trust document never mentions the property
• There is no Schedule A or equivalent attachment identifying the asset
• The decedent's expressed intent to include the property is unclear or contested

How a Heggstad Petition Compares to Full Probate

The comparison is stark:

For a $1,000,000 home, avoiding formal probate via a successful Heggstad Petition can save $23,000 in statutory attorney fees (and another $23,000 if the executor also charged statutory fees), plus a year or more of time. This is why California estate attorneys consider the Heggstad Petition one of the most valuable tools in the post-death toolkit.

The Procedural Steps

A Heggstad Petition is filed in the Superior Court in the county where the decedent resided at the time of death, or where the property is located if the decedent lived elsewhere.

1. Identify and assemble the documentary record

You will need:

• The complete trust instrument, including all amendments (amendments are critical—later amendments can override or clarify earlier ones)
• Any Schedule of Assets attached to the trust
• Recorded deed showing the property in the decedent's name
• Other evidence of intent if the Schedule A is ambiguous (correspondence, prior deeds showing the property in trust before a refinancing, etc.)

2. Draft the petition

The petition is filed under Probate Code Section 850. There is no standardized Judicial Council form for this petition—it is a free-form pleading that must identify:

• The petitioner (typically the successor trustee)
• The trust and its terms
• The specific property in dispute
• The evidence of the decedent's intent to include the property in the trust
• The legal basis for the court's jurisdiction

Because there is no form, this is typically drafted by an attorney. However, for uncontested cases with clear documentary evidence, the petition is relatively straightforward compared to full probate litigation.

3. File and pay fees

The petition is filed with the court clerk and incurs a filing fee (the standard petition fee, currently in the $435 range for the civil fee schedule). The court sets a hearing date.

4. Serve all required parties

Here is a critical distinction that catches many trustees off guard: a Probate Code Section 850 petition requires 30 days of notice to all interested parties—not the 15 days required for standard probate petitions. Interested parties include all beneficiaries of the trust and all persons who would be entitled to inherit if there were no trust (i.e., the heirs under intestate succession).

The 30-day notice period is mandatory. If you serve notice and then discover you missed someone, you will need to re-serve and reset the hearing date.

5. Attend the court hearing

If the petition is uncontested and the documentary evidence is clear, the court typically grants the petition at the initial hearing. The judge signs an order declaring the property to be an asset of the trust. The order is then recorded with the county recorder to clear the title.

6. The trustee distributes under the trust terms

Once the property is formally declared a trust asset, the trustee administers and distributes it according to the trust's instructions—without further court supervision, public notice, or the statutory fee schedule.

The Risk: When Heggstad Petitions Are Contested

The petition can be challenged by heirs who would benefit more from intestate succession than from the trust distribution. If the trust leaves everything to one child but intestate succession would distribute evenly among four children, the three excluded children have a financial incentive to contest.

A contest can turn a 60-day proceeding into months of litigation. The strength of your position depends on the quality of the documentary evidence. A detailed Schedule A specifically listing the property by assessor's parcel number is far more defensible than a vague reference to "all my real property." Correspondence showing the decedent's intent to include the property in the trust, or records showing the property was previously titled in the trust before a refinancing, substantially strengthens the petition.

Heggstad vs. Other Summary Alternatives

It is worth comparing the Heggstad Petition to other available tools:

Spousal Property Petition: If the uncovered asset is community property and passes to a surviving spouse, the Spousal Property Petition (Probate Code Section 13650) may be faster and simpler—it applies regardless of trust status and has no dollar limit.

DE-310 Primary Residence Petition: For primary residences with gross value at or below $750,000 (post-April 2025), the AB 2016 petition may be a viable alternative to avoid probate entirely, even without a trust. However, heirs who use DE-310 assume personal liability for the decedent's debts up to the property's value—a significant trade-off that the Heggstad route avoids.

Full Probate: If the property is clearly outside the trust and there is no documentary evidence of intent to include it, neither a Heggstad Petition nor a DE-310 summary procedure may be available. In that case, formal probate with the full statutory fee schedule applies.

If you are managing a California estate where a trust was supposed to hold assets that ended up outside it, the California Probate Process Guide covers the Heggstad Petition process in detail alongside the triage framework for identifying which assets need what kind of proceeding.

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