One of the most heartbreaking estate mistakes I see is a family who carefully set up a living trust, only to discover the house was never actually retitled into it. California’s Heggstad petition can sometimes fix exactly that. I am a REALTOR®, not an attorney, but families deserve to know this remedy exists.
The problem it solves
A living trust only controls assets that are actually titled in it — this is called funding. Sometimes a person creates a trust and lists the home on a schedule of trust assets, but never records a deed transferring the house into the trust. When they die, the home appears to be outside the trust, which would normally mean probate. The Heggstad petition asks the court to confirm the home was meant to be a trust asset.
Where the name and law come from
The procedure takes its informal name from a California appellate case, and it operates under Probate Code §850, which lets interested parties petition the court to determine ownership of property claimed to belong to a trust or estate. If the petition succeeds, the court confirms the asset belongs in the trust, and the successor trustee can administer it through the trust rather than probate.
What the court generally looks for
- Evidence of intent — commonly a trust schedule, assignment, or other writing showing the decedent intended the asset to be part of the trust.
- A valid trust that the asset was meant to fund.
- Clarity of the asset being claimed.
The strength of the evidence drives the outcome, which is why this is so fact-specific and squarely a matter for a probate attorney. A simple schedule referencing the property can make the difference between a Heggstad petition and a full probate.
What it means for selling the home
If a Heggstad petition succeeds, the home is confirmed as a trust asset, and the successor trustee can sell it like any trustee sale — generally without the court-confirmation and overbid steps of a full probate sale. That is usually faster, more private, and less costly. Compare with my probate vs. trust page.
- Attorney evaluates whether the evidence supports a Heggstad petition under §850.
- Petition is filed and heard; if granted, the court confirms the asset belongs in the trust.
- Title is cleared consistent with the order.
- Trustee sells the home — where I help with valuation, prep, and marketing.
If the petition is not viable, the fallback is usually probate — see my probate home sale guide and the distressed and inherited property hub.
Frequently Asked Questions
What is a Heggstad petition?
It is a request under California Probate Code §850 asking the court to confirm that an asset, often a home, belongs to a trust even though the title was never formally transferred, where there is evidence the decedent intended it to be in the trust. If granted, the asset can be administered through the trust rather than probate.
When is a Heggstad petition used?
It is used when someone created a living trust and intended a home to be part of it, often listing it on a trust schedule, but never recorded a deed transferring the property into the trust. The petition asks the court to confirm the intended transfer so the asset avoids full probate.
What evidence does a Heggstad petition need?
Courts generally look for evidence of the decedent’s intent that the asset be part of the trust, such as a trust schedule, assignment, or other writing, along with a valid trust and a clearly identified asset. The strength of the evidence drives the outcome, so it is highly fact-specific.
How does a successful Heggstad petition affect selling the home?
If granted, the home is confirmed as a trust asset, so the successor trustee can sell it like any trustee sale, generally without the court-confirmation and overbid steps of a full probate sale. That usually makes the sale faster, more private, and less costly than probate.
What happens if a Heggstad petition is not viable?
If the evidence does not support confirming the asset as a trust asset, the fallback is usually full probate for that property. An attorney can tell you whether a Heggstad petition is realistic or whether you should plan for probate from the start.
Can you file a Heggstad petition for me?
No. I am a REALTOR®, not an attorney, so I do not prepare or file petitions or evaluate the legal evidence. I help with valuing, preparing, and selling the home once the legal path is confirmed, and I coordinate with your probate attorney, who handles the §850 petition.
