What Is a Heggstad Petition? Getting Property Into the Trust

A Heggstad petition asks the probate court to confirm that a house or account your parent listed in the trust but never retitled was trust property all along. The court can do that because of a 1993 case, Estate of Heggstad, and a statute that lets a trustee ask (Probate Code § 850). If the court agrees, the asset skips probate and the successor trustee can sell it, keep it, or hand it out under the trust. If not, the asset goes through probate or a small-estate procedure.

Here's the thing: this is the most common gap in a Silicon Valley estate plan. Mom deeded the Sunnyvale house into the trust in 2004, refinanced in 2012, and the lender's escrow deeded it back to her as an individual, and nobody deeded it in again. Property not transferred to trust before death is fixable more often than families expect, but only with the right paper.

Most trustees with this problem did nothing wrong. The judge's first question is what your parent signed. The second is what you did with the asset while the question was open, so do not rent it, sell it, or move the money yet.

Where does the name Heggstad petition come from?

Halvard Heggstad signed a living trust in 1989, naming himself trustee and his son Glen as successor. Its schedule A listed a 34.78 percent interest in a building at 100 Independence Drive in Menlo Park, San Mateo County. He deeded every other property on the schedule to himself as trustee, but not that one. A month later he married. When he died in 1990, his new wife was entitled to one-third of his probate estate.

Glen, as successor trustee, asked the probate court for instructions. The wife objected that without a deed the property never entered the trust. The Court of Appeal disagreed.

A trust can be created by a "declaration by the owner of property that the owner holds the property as trustee" (Probate Code § 15200). For real estate the declaration must be in a writing signed by the trustee (Probate Code § 15206). Heggstad's trust transferred to himself as trustee "the property described in Schedule A attached to this instrument," and he signed it. That was enough: "there is no requirement that the settlor/trustee execute a separate writing conveying the property to the trust" (Estate of Heggstad). The petition is named for the case; on the docket it is a Probate Code 850 petition.

What evidence do you need to win a Heggstad petition?

Every Heggstad petition California courts grant rests on a signed writing. The court is asking what your parent signed, and whether the words reach the asset. Four kinds of paper do the work.

• The trust's schedule of assets. A signed trust with an attached schedule that lists the house by address is the Heggstad fact pattern itself.
• A general assignment. In Kucker v. Kucker an 84-year-old signed her trust and, the same day, a general assignment. It covered "all of my right, title and interest in all property owned by me, both real and personal and wherever located," and she died that November with 3,017 Medco shares outside the trust. The Court of Appeal held the assignment carried the shares in.
• A transfer clause inside the trust. In Ukkestad v. RBS Asset Finance the trust said the settlor "assigns, grants and conveys" to the trustees all of his real and personal property, and two parcels were still deeded to him personally. The court held the general words reached real estate: "it is a simple matter of referring to publicly available records to determine Mabee's real estate holdings" (Ukkestad). The objecting creditor lost.
• A trust that names someone else as trustee and says "I transfer" the listed property. In Carne v. Worthington the trust said "I transfer to my Trustee the property listed in Schedule A, attached to this agreement," and the schedule listed the house. The court held the trust document was itself the conveyance.

What loses is silence. In Osswald v. Anderson the trust pointed to a schedule A, "but no schedule was attached," so nothing was described. The home never entered that trust, and the drafting lawyer's testimony about what the couple wanted could not fill the gap.

Do you file under Probate Code section 850 or section 17200?

Heggstad himself used a petition for instructions under Probate Code § 17200, and the Court of Appeal said the choice of vehicle was "of no legal significance" (Estate of Heggstad). The direct route today is Probate Code § 850. It lets a trustee or any interested person petition "Where the trustee has a claim to real or personal property, title to or possession of which is held by another" (Probate Code § 850). If the court is satisfied, it orders whoever holds title to sign a conveyance, "or granting other appropriate relief" (Probate Code § 856). Heggstad warned that "to be effective as to strangers, the declaration of trust must be recorded," so record the order or a deed before the property is sold.

Notice is strict. The petitioner must serve notice and a copy of the petition "At least 30 days prior to the day of the hearing," the way a lawsuit is served. It goes to the trustee and to "Each person claiming an interest in, or having title to or possession of, the property" (Probate Code § 851). For real estate the notice must state "the street address or, if none, a description of the property's location and assessor's parcel number." And "The court may not shorten the time for giving the notice of hearing under this section" (Probate Code § 851).

What happens at a Heggstad petition hearing in Santa Clara County?

The petition is filed in the probate court in San Jose, part of the Santa Clara County Superior Court. New probate cases go to one all-purpose judge who decides everything up to trial (Probate Local Rule 1(A)).

About two court days before the hearing, the court posts an Advance Case Status Report: "Pre-Approved," "Continued," "Parties to Appear," or Probate Examiner notes listing procedural deficiencies (Probate Local Rule 1(H)). A pre-approved petition with no objection is granted when the calendar is called, without an appearance.

If someone objects, it is a contested matter. There is no jury (Probate Code § 17006), and civil discovery rules apply (Probate Code § 1000). Contested matters that fit in three hours are heard by the probate judge; longer trials go to the civil master trial calendar (Probate Local Rule 1(I)).

What happens if a Heggstad petition fails?

If no signed writing reaches the asset, it sits in your parent's probate estate, and the question becomes which procedure fits. A pour-over will (Probate Code § 6300) sends the asset to the trust, but only after probate.

Small estates skip probate. Forty days after death, if the property left in your parent's own name is at or under the limit, the "successor of the decedent" can collect personal property by affidavit (Probate Code § 13100). The limit is $208,850 for a death on or after April 1, 2025. When the will pours over to the trust, the trust is the will's beneficiary, so the trustee signs (Probate Code § 13006).

The house is the harder problem. A primary residence worth no more than $750,000, for a death on or after April 1, 2025, can pass by a court petition with a probate referee's appraisal instead of a full probate (Probate Code § 13151). Above that, a house outside the trust means a full probate unless the writing supports a Heggstad order.

How does a contested Heggstad petition turn into trust litigation?

The petition is rarely the whole fight. The objectors are the people who gain if the asset stays outside the trust: an omitted spouse (Heggstad), a creditor (Ukkestad), or a child who takes under the will but not the trust. The objection is usually that the trust or amendment listing the asset was signed under undue influence or without capacity. Title fights like this one are the core of our estate property disputes practice.

Carne is the pattern. The trustee won the deed question, and the appellate court sent the case back for the trial court to take up undue influence and capacity, which the opinion left open. A win on the writing can be followed by a full trust contest; our guide to how a trust contest works in California covers that fight.

Filing the petition is administration work, so you may hire a lawyer (Probate Code § 16247), and the trust repays "Expenditures that were properly incurred in the administration of the trust" (Probate Code § 15684). That rule is conditional: if the fight is really about your own share, the trust may not cover you. Our guide to when a trustee can use trust funds for attorney fees draws the line. And a person who has "in bad faith wrongfully taken, concealed, or disposed of property" belonging to a trust can owe "twice the value of the property recovered" (Probate Code § 859). Our guide to trust fights over real estate, LLCs, and a family business picks up from there.

What are the deadlines for a Heggstad petition?

What should a successor trustee do next?

1. Leave the asset alone: no sale, no lease, no transfers. Keep insurance and taxes paid.
2. Pull the paper: the signed trust and amendments, every schedule, any general assignment, the pour-over will, and the recorded deeds.
3. Match the writing to the asset. Does a signed document describe it, or assign everything your parent owned?
4. Pick the road: a Heggstad order, a small-estate procedure, or probate. Our trustee duties checklist covers the rest of the first 60 days.
5. After the order, record it or a deed, retitle the account, and mark the asset as trust property (Probate Code § 16009).