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.
Record title says one thing and the trust says another — and until that is resolved, the successor trustee cannot sell, refinance, or distribute the asset.
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
Estate of Heggstad (1993) 16 Cal.App.4th 943 applied Probate Code section 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 — there was nothing left to convey. The court confirms what the signed paperwork already did; it does not cure a missing transfer with evidence of good intentions.
That is asked for through a petition under Probate Code section 850, commonly called a Heggstad petition, so the successor trustee can deal with the asset 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 | Normally a single hearing if unopposed; several months, driven by the court's calendar and a non-shortenable 30-day notice period | Typically longer — it runs the full administration |
| 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 prior deed showing the property was in the trust before a refinance took it out
For real property, section 15206 requires a signed writing — how the family treated the asset cannot substitute for it. For accounts and securities section 15206 does not apply, and a general assignment signed with the plan can reach even unlisted assets.
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 — at least 30 days before the hearing. Probate Code section 851 requires notice and a copy of the petition on the trustee and on anyone claiming an interest in or holding the property, in the same formal manner as a summons (Code of Civil Procedure section 413.10 and following), and on the trust's beneficiaries under section 17203 — on Judicial Council form DE-115. The court may not shorten this period (section 851(d)), so a defective service continues the case rather than being fixed at the hearing.
- 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:
- Check the deed or account titling first. If it already names the trust, it is already trust property — no petition. An affidavit of death is recorded under section 210(a), and a certification of trust under section 18100.5 is what banks and title companies ask for.
- A section 13200 affidavit may transfer real property worth $69,625 or less for deaths on or after April 1, 2025 (the cap is keyed to the date of death under section 890) — the cheapest real-property route there is.
- 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 (a gross test across the whole California estate, not per asset; next adjusted April 1, 2028). 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.
One caveat matters more than the dollar limits. The small-estate, section 13200 and succession routes all hand the asset to the decedent's "successor" as section 13006 defines it — whoever takes that item under the will, or the heirs under sections 6401 and 6402 if there is no will. A trust can be that successor: where the will pours the residue into the trust, section 6300(b) delivers the asset into the existing trust. But with no pour-over will, those routes transfer the asset to the heirs rather than into the trust, which is the opposite of what the trust was written to do. Cheaper, and wrong. A section 850 petition is the only route that treats the asset as trust property from the start.
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. If your situation needs legal advice or turns out to be contested, we will tell you that you need an attorney.
Not sure which route fits? Our free questionnaire shows you the published eligibility limits — the dollar thresholds, the 40-day waiting periods, and the title requirements — for each California procedure, side by side with your answers, so you can decide. We are Legal Document Assistants, not attorneys; we do not select the procedure for you or advise you on your legal rights.