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1.In Heggstad petition, can we ask that all the decedent's assets be declared as trust assets? 2) Avg. cost of Heggstad?

Castro Valley, CA |

Please advise.

Attorney Answers 3


The following information can be found, here:

When a person's property has been placed in a living trust prior to death, that property can be transferred directly to heirs and beneficiaries upon death without the time and expense of a probate proceeding. However, sometimes people fail to include all of their property in the trust before they die. When this happens, a simplified form of probate known as a Heggstad petition may be available in California for property left outside of the trust. While a full probate proceeding takes a minimum of seven months and costs up to 6 percent of the property, a Heggstad petition can be completed in two months and often costs less than $1,500.

Best of luck to you!

James Frederick

*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.

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Wow! They really do do things different in California!
Here's more background from Law Offices of Shahram Miri, Inc., PC:
"One of the required elements of a California revocable trust is that the trust be funded with some piece of property, whether real or personal. Prob C §15202. Often times, a person who creates a trust without the assistance of counsel will fail to formally transfer their assets into the trust because they are either unaware of the requirement or are unsure as to how to effect the transfer from themselves as an individual to themselves as trustee of their trust. A famous California probate case was the result of the failure to formally fund a trust. In Estate of Heggstad (1993) 16 CA4th 943, the trust drafter failed to formally transfer his home into his revocable trust but his revocable trust included a declaration of trust in which it listed his home as an asset of the trust. The Heggstad opinion said that this declaration of trust was sufficient to transfer his home into the trust even though he never formally transferred his home through a deed into the trust. Consequently, many California attorneys now file Heggstad petitions on behalf of their clients to formally transfer an asset, namely a house, into the decedent’s trust so as to avoid probate. Prob C §850. "
Yikes! Who would of thought?

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James P. Frederick

James P. Frederick


It actually makes a lot of sense. There probably should be a simplified way of accomplishing this in Michigan, as well. If the person has a general assignment and a pourover Will, I think it is safe to assume they would have wanted the asset in their trust. (Assuming no joint owner or beneficiary.)


Heggstad petitions are fact specific and therefore the cost varies based on the facts. Chances of success also depend on the county in which the proceeding is being filed. Some counties are more reluctant to grant Heggstad petitions than others.

As to whether all of the decedent's assets can be declared to be trust assets, that too will depend on your facts. You have not provided enough information to make a determination. It is important to know what type of proof you have that the decedent intended his assets to be transfered to the trust. What kind of assets are you talking about? For example, while a general assignment will work to transfer securities and bank accounts, it is insufficient to transfer real estate under the Statute of Frauds. Real Property must be identified with more specificity than is present in a general assignment.

You will need to see a lawyer who can review your documentation and your facts and give you an estimate of your chances of success as well as an estimate of the cost of proceeding.

Good luck!


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Robert Paul Bergman

Robert Paul Bergman


This is a good answer. I would add that having a schedule of assets for the living trust that identifies the specific assets helps the Probate Court make a determination to grant the petition. Also, in some counties, having a special type of Will that directs property to the person's revocable living trust (called a "pour-over" Will) may be sufficient to transfer even real estate to a living trust without a formal Probate. Some counties (such as Santa Clara County) also permit this type of petition to granted on an "ex parte" basis, meaning that the petition can be submitted to the court without a formal hearing being required.

Mary Lynn Symons

Mary Lynn Symons


Mr. Bergman is pointing out some of the documentation that I was referencing. A detailed Schedule is very helpful although there is case law that says that a general assignment is sufficient for certain assets.

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