An asset that should be in a trust — but isn't

A Heggstad petition is the common name for a petition under California Probate Code §850. Where a trust's trustee has a claim to property whose title is held by someone else — including the deceased settlor individually — §850(a)(3)(B) lets the trustee or an interested person ask the probate court to determine that claim. If the court grants it, the order issues under §856, and for real property it is recorded to fix the chain of title.

The name comes from Estate of Heggstad (1993) 16 Cal.App.4th 943, which applied Probate Code §15200(a): a trust can be created by "a declaration by the owner of property that the owner holds the property as trustee." Where the person who owned the asset was also trustee of their own trust, and a signed trust document described the asset, no separate deed was required to make it trust property. The court confirms what the paperwork already did — it is not curing a missing intention with evidence.

First: check whether you need this at all

A §850 petition is not always necessary, and often it is not the cheapest route. Before anything is prepared, your Legal Document Assistant reads the actual deed or account titling and the trust documents against these published limits:

• Does the deed or account already name the trust? Then it is already trust property and there is no petition. For real property an affidavit of death with a certified death certificate is recorded under Probate Code §210(a); banks and title companies generally ask for a certification of trust under §18100.5.
• Is there a surviving spouse or registered domestic partner? Property passing to the survivor may need no administration at all (§13500), or may be confirmed by a Spousal or Domestic Partner Property Petition (§13650, form DE-221) — which has no dollar limit.
• Is it a bank or brokerage account, with the whole California estate at or under $208,850? A small-estate affidavit under §§13100–13101 collects it with no court filing, 40 days after the death. That figure applies to deaths on or after April 1, 2025, is a gross test across the whole California estate rather than per asset, and is adjusted every three years under §890 (next April 1, 2028). §13050 excludes certain property from the count.
• Is it the decedent's primary residence, at or under $750,000? A Petition to Determine Succession to Real Property (§§13150–13154, form DE-310) can transfer it, 40 days after the death.
• Is it real property worth $69,625 or less? A §13200 affidavit (form DE-305) may be enough. That figure applies to deaths on or after April 1, 2025; like the other caps it is keyed to the date of death and adjusted every three years under §890.
• Was there a beneficiary designation, a payable-on-death account, a transfer-on-death deed, or joint tenancy? Those pass outside both the trust and probate.

The catch on the two summary routes: they follow the will, not the trust. A small-estate affidavit and a succession petition both transfer the asset to the decedent's "successor" as Probate Code §13006 defines it — the person or entity that takes that item under the will, or, if there is no will, the heirs under §§6401 and 6402. A trust can be that successor: §13006(a) says so expressly, §13152(a)(7) contemplates a trustee petitioner, and where the will pours the residue into the trust, §6300(b) puts the asset into the existing trust rather than a testamentary one. So with a pour-over will, a DE-310 or a §13100 affidavit is a genuine and cheaper alternative for an unfunded asset.

Without a pour-over will, they are not an alternative at all — they are a different outcome. The asset goes to the will's takers, or to the intestate heirs, not into the trust, defeating the plan the trust was written to carry out. A §850 petition is the only route that determines the asset was the trust's property from the start, and the only one available with no will, above the caps, or where an heir disputes it. Two further differences worth knowing: a §13152 petitioner takes on personal liability for the decedent's unsecured debts up to the property's value under §13156, and a §13200 affidavit requires that funeral expenses, last-illness expenses and all unsecured debts already be paid, six months after the death. Neither applies to a §850 petition.

Where a §850 petition genuinely earns its keep. Since April 1, 2025, the $750,000 succession petition applies only to the decedent's primary residence (Assembly Bill 2016, Stats. 2024, ch. 331). Other real property — a rental, a second home, land — worth more than $69,625 now has no summary succession route at all. If the trust paperwork supports it, a §850 petition is the alternative to opening a full probate.

What the court is looking for

A signed writing that describes the property, not a narrative about what the decedent meant.

• Real property: §15206 requires a written instrument — the trust or declaration signed by the owner as trustee, or an instrument conveying the property signed by the settlor. The description can be general, as long as the property is identifiable from it (Ukkestad, above). A prior deed showing the home was in the trust before a refinance took it out is strong support.
• Personal property — accounts, securities, business interests: §15206 does not reach them, and a general assignment of assets signed when the plan was executed has been held effective even for assets nobody listed (Kucker, above).
• Where these fail: no signed declaration by this settlor as trustee of this trust, or an asset acquired later and never described in any signed instrument (Carne, above).

Whether a particular trust's language satisfies §15206 is fact-specific. Your LDA reviews the trust documents before anything is prepared, and if the situation needs legal advice or turns out to be contested, we will tell you that you need an attorney.

Notice is where these cases are won or lost

There is no Judicial Council form for the §850 petition itself — it is a verified pleading on pleading paper, and Probate Code §1021 requires the petitioner to verify it.

Notice is the part that decides whether the case is heard or continued. Under §851, at least 30 days before the hearing, notice and a copy of the petition must be served:

• on the trustee and on anyone claiming an interest in, or holding title to or possession of, the property — in the same formal manner as a summons, under Code of Civil Procedure §413.10 and following;
• on the trust's beneficiaries and trustees under §17203, or on the persons entitled under §1220 in a decedent-estate matter;
• on Judicial Council form DE-115, Notice of Hearing on Petition to Determine Claim to Property, prepared after filing once the court assigns the hearing date. For real property the notice must state the street address or the assessor's parcel number (§851(c)).

§851(d): the court may not shorten this time. A missed or defective service cannot be cured at the hearing — it continues the case, and the next available date may be weeks or months out. This is the single most common reason a straightforward petition takes twice as long as it should.

What this costs against the alternative

How ProbateClear and your LDA handle it

A registered California Legal Document Assistant can walk you through the published eligibility limits for each route, prepare the petition, file it, serve the notices, and record the resulting order — at your direction, for a flat fee. If your situation needs legal advice or turns out to be contested, we will tell you that you need an attorney.

This is general legal information, not legal advice. We are registered Legal Document Assistants under Business & Professions Code §6400 et seq. and are not attorneys; we provide self-help services at your specific direction, and we do not select the procedure for you or advise you on your legal rights.

How it works

1. We confirm the asset really is outside the trust — and that you need a petition at allYour Legal Document Assistant reads the actual deed or account titling and the trust documents. If the deed already names the trust, no petition is needed. If a small-estate affidavit, a spousal property petition, or a succession petition reaches the asset, those are cheaper and we tell you so before anything is prepared.
2. We prepare the §850 petition as a verified pleadingThere is no Judicial Council form for a §850 petition — it is a verified pleading on pleading paper, and Probate Code §1021 requires the petitioner to verify it. It sets out the trust, the signed writing that describes the asset, and the relief requested under §856.
3. Your LDA files it and the court assigns a hearingYour Legal Document Assistant files the petition in the superior court with jurisdiction over the trust or the estate, pays the filing fee, and returns the conformed copies to you. The court sets the hearing from its own calendar; no statute fixes that date. You do not deal with the clerk.
4. We serve notice on Judicial Council form DE-115 — at least 30 days outProbate Code §851 requires notice and a copy of the petition at least 30 days before the hearing: on the trustee and anyone claiming an interest in or holding the property, in the same formal manner as a summons (Code of Civil Procedure §413.10 and following), and on the trust's beneficiaries under §17203. For real property the notice must state the street address or the assessor's parcel number. The court has no power to shorten this period.
5. We track the case until it is heardYour LDA follows the case on the court's docket from filing to hearing — the assigned date, any continuance, any response filed by someone who was served, and any defect the clerk or the probate examiner flags in the tentative ruling, which is where most §850 petitions get held up. You see the current status and the next date on your case page rather than having to call the court.
6. The hearing, and the orderIf no one objects, these are normally resolved at a single hearing, and unopposed petitions are often granted on the tentative ruling without anyone appearing. The court issues an order under Probate Code §856 confirming the asset belongs to the trust. Your LDA obtains the signed, conformed order from the court. An LDA is not a lawyer and cannot appear or argue for you — if the court sets a contested hearing or directs an appearance, we tell you so at once and what your options are.
7. We record the order and close the matter outFor real property, the signed order is recorded with the county recorder, which fixes the chain of title so the successor trustee can sell, refinance, or distribute the property. Your LDA prepares that recording packet to the county's rules — you can record it yourself or we can handle it. For accounts, the conformed order is what the institution needs to retitle. You get the recorded order and the complete filed set, and the matter is closed on your case page.