Omitted Trust Assets & Heggstad Petitions

In order for a trust to be effective it must be properly funded. This means that to be protected by the trust, all of the settlor’s assets must be placed in the name of the trust.  However, sometimes a loved one forgets to transfer an asset into the trust, or a piece of property is not recorded properly, leaving it out of the trust estate.

A Heggstad Petition can be filed with the local probate court by the successor-trustee, requesting that any omitted property now be funded into the trust estate. If approved by the court, the asset will avoid probate, and become a part of the trust. Therefore, a successful Heggstad Petition may remove the need for a formal probate, thus saving significant time and expense.

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In a Heggstad Petition, the court is asked to do the following:

  • Confirm the existence of the revocable trust;
  • Confirm that the person petitioning the court is the currently acting trustee of the trust; and
  • Confirm that the particular assets referred to or listed in the trust instrument are in fact a part of the trust, even though there is an absence of a formal conveyance or other proper titling placing the asset into trust.

The burden of proof for the petitioner of a Heggstad Petition is clear and convincing proof that the deceased loved one (settlor) intended to hold the particular asset in trust. Whether this burden of proof can be met often depends heavily on the specific facts of your case.

Here at Fyfe Law Firm, we are happy to discuss how we may be able to assist in amending what a deceased love one forgot or failed to place in the name of the trust with the use of a Heggstad Petition. Call us at (858) 412-7714.

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