Sometimes spelled a number of different ways (Hegstead, Heggstead, Hegsted, Hogshead, etc...) but the correct spelling is HEGGSTAD. It stems from the Estate of Heggstad, a 1993 California case (16 Cal. App. 4th 943) which allowed the inclusion of assets into a trust AFTER DEATH.This type of petition also incorporates California Probate Code 850 and occasionally California Probate Code 17200. Often the decedent failed to actually transfer all of her assets to her trust prior to dying. Then after death you, as the successor trustee, need to clear title so the property can be sold, re-financed or deeded to the rightful beneficiary. A full probate is one option but sometimes a Heggstad petition will work.
The Heggstad case
In the Heggstad case, which started out in the San Mateo county probate Court, Mr. Heggstad died with a trust. Though he had a trust some assets were not properly titled in his trust; specifically his home on Independence Way in Menlo Park. That is, before death you are supposed to deed, or otherwise transfer, your assets into the trust. Mr. Heggstad failed to do that transfer with his Menlo Park home as he did not sign and record a deed showing the transfer to his trust. However, he had a schedule of assets attached to his trust which specifically named his home as being an asset of the trust. The Court held that having the assets listed on a schedule of assets, attached to the trust, was enough to show the decedent intended to include the assets in the trust. The key issue in these type of cases is INTENT! This rule of law has been expanded to include assets that are not listed on a schedule of assets but the decedent has shown other forms of written intent to include in trust.
Evaluating your case
When evaluating whether a Heggstad petition will work we will analyze and review all the documents you have to see if there is enough to support a Heggstad petition. We don't want to advise you do a Heggstad petition if it's not likely to work as you will just be wasting time and money. We will generally give you an estimated chance of success as well as explain all of your options for transferring the property. Occasionally there are other options which make more sense so let us help analyze all the choices you have. However, a Heggstad petition is often the right answer when there is an unfunded trust. Contact us so we can review the documents your loved one left behind so we can see if a Heggstad petition is right for you!
The Heggstad petition timeline
A Heggstad petition filed under Probate Code 850 requires 30 days notice to all interested parties. In some cases personal service is required so make sure your attorney knows exactly what the probate code requires because failure to follow the rules specifically will cause a Heggstad petition to fail. This 30 day notice requirement is longer than the normal 15 day requirement of most other probate Court petitions. Aside from the longer notice period a Heggstad petition should be prepared, filed, heard by the Judge, and finished within approximately 60 days. This is substantially shorter than the 7 months minimum that a full probate takes.
Heggstad v. Probate
An option that is often explored is if a full probate or a Heggstad petition makes more sense for a particular client. A Heggstad petition can never be guaranteed to work. A detailed analysis of both methods should be explored BEFORE your attorney prepares any petitions. In some cases doing a full probate just makes more sense. Know this going in so you don't waste time and money. As stated above a Heggstad petition should take about two months to complete which is much shorter than the 7 months a full probate takes. However, with a full probate you should have "Letters" granted to you within about 6-8 weeks and be able to sell real property and other assets at that time. Thus the totality of the time is not the only issue to look at. When you will have authority to sell items is often the key issue!
In conclusion trusts are much more complicated than your loved one may have been told when they set up their trust. Contact John Palley for expert advice and representation in all trust matters. Whether you are an individual trustee, a corporate trustee, a beneficiary, a creditor, or even just an interested party we can likely help you! If you think you need a Heggstad petition I can give you, in numerical terms, your chances of success if we file a Heggstad for you. Call me! -John
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