It is one of the most common problems in California trust administration: the estate plan was done properly, but an asset never actually made it into the trust. A refinance took the house out and it was never deeded back. An account was opened after the trust was signed. A brokerage account was simply overlooked.
The trust says it owns the asset. The title says otherwise. Title wins — unless a court says otherwise.
Why this happens so often
A trust only controls what has been transferred into it. Signing the trust document is step one; funding it — retitling the house, the accounts, the business interest — is step two, and step two is the one that gets left half-done. Years pass, assets move, and nobody re-checks the paperwork.
The result is an asset that is, on paper, still owned by the person individually. Ordinarily that means probate.
What a Heggstad petition does
In Estate of Heggstad (1993), a California court confirmed that where there is adequate evidence the person intended an asset to be part of their trust, the court may declare that the trust owns it — even though title was never formally transferred.
That principle is now used through a petition under Probate Code section 850, commonly called a Heggstad petition. It asks the court to confirm the asset belongs to the trust, so the successor trustee can deal with it like any other trust asset.
The practical difference:
| Heggstad petition | Full probate | |
|---|---|---|
| Court involvement | One petition, one hearing | An opened estate, ongoing supervision |
| Typical timeline | Hearing often set roughly two to four months out, depending on the county | Roughly 9–18 months |
| Cost | A flat filing, plus the court's fee | Statutory fees under Probate Code sections 10800 and 10810 — the same schedule paid separately to the personal representative and to the attorney |
What the court is looking for
The petition needs to show intent — evidence that the person meant this asset to be trust property. The strongest evidence usually includes:
- A schedule of trust assets attached to the trust that lists the property
- A general assignment of assets to the trust signed when the plan was executed
- Language in the trust identifying the asset
- A pattern of treatment — the asset managed as trust property, or a prior deed showing it was in the trust before a refinance took it out
The weaker the paper trail, the harder the petition. This is why the trust binder matters: what was signed years ago determines what is possible now.
The process, start to finish
- Confirm the asset really is outside the trust — pull the actual deed or the account titling, don't rely on memory.
- Check whether a simpler route exists. Not everything needs a petition; see below.
- Prepare the petition with the supporting evidence of intent.
- File it in the superior court in the right county and pay the filing fee.
- Serve notice on the beneficiaries, heirs, and other required parties.
- Attend the hearing. If unopposed, these are often brief.
- Record the order with the county recorder if the asset is real property, which fixes the chain of title.
Check the simpler routes first
A petition is not always necessary, and a good process rules out the cheaper paths before filing anything:
- A small-estate affidavit may collect personal property — bank and brokerage accounts — for estates within the statutory cap, which is $208,850 for deaths on or after April 1, 2025. No court, though a 40-day wait applies.
- A spousal property petition may confirm property passing to a surviving spouse.
- A simplified succession petition may transfer a primary residence up to $750,000 for deaths on or after April 1, 2025.
- Beneficiary designations and joint tenancy transfer outside both the trust and probate entirely.
Choosing correctly here is the difference between a $200 affidavit and a court filing.
What it costs to get wrong
Left unresolved, an asset outside the trust doesn't just sit there. A home with a broken chain of title cannot be sold or refinanced. Beneficiaries cannot be paid their full share. And the longer it goes, the more likely the next event — another death, a sale, a lender's title search — turns a fixable problem into an expensive one.
Getting it done
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, with an attorney-authored petition behind it.
Not sure whether the asset needs a petition or an affidavit? Answer five questions and find out free, before anything is owed.