John B. Palley, the lead Sacramento CA probate lawyer at the firm, is an attorney who has practiced in the area of trust administration since 1994. Mr. Palley is a Certified Specialist in Estate Planning, Trust & Probate Law as determined by the State Bar of California Board of Legal Specialization. He has significant experience with trust administration both in Court and out of Court. Though the goal of most people is to avoid the Probate Court there are some cases where it can not be avoided. Below is information about some common ways that a trust administration becomes Court administered. If your question isn’t answered below give John a call ASAP! (800) 965-1106, (916) 920-5983 or email him at info@californiaprobate.info.
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Information about California Probate Code Sections 850 and 17200 (including “Heggstad” petitions) is below. Trust an “expert” and contact John Palley, a past Sacramento Bee estate planning, trust and probate law “expert.” Mr. Palley is contacted often by other attorneys to help their client’s with Heggstad and other Probate Court petitions. Contact the Sacramento CA probate lawyer that other attorneys use and contact John! info@californiaprobate.info
Sometimes spelled a number of different ways (Hegstead, Heggstead, Hegsted, Hogshead, etc…) but the correct spelling is HEGGSTAD. It stems from the Estate of Heggstad, a 1993 California case (16 Cal. App. 4th 943) which allowed the inclusion of assets into a trust AFTER DEATH. This type of petition also incorporates California Probate Code 850 and occasionally California Probate Code 17200. Often the decedent failed to actually transfer all of her assets to her trust prior to dying. Then after death you, as the successor trustee, need to clear title so the property can be sold, re-financed or deeded to the rightful beneficiary. A full probate is one option but sometimes a Heggstad petition will work.
In the Heggstad case, which started out in the San Mateo county probate Court, Mr. Heggstad died with a trust. Though he had a trust some assets were not properly titled in his trust; specifically his home on Independence Way in Menlo Park. That is, before death you are supposed to deed, or otherwise transfer, your assets into the trust. Mr. Heggstad failed to do that transfer with his Menlo Park home as he did not sign and record a deed showing the transfer to his trust. However, he had a schedule of assets attached to his trust which specifically named his home as being an asset of the trust. The Court held that having the assets listed on a schedule of assets, attached to the trust, was enough to show the decedent intended to include the assets in the trust. The key issue in these type of cases is INTENT! This rule of law has been expanded to include assets that are not listed on a schedule of assets but the decedent has shown other forms of written intent to include assets in trust such as by the use of a general transfer statement as we do with all of our trust clients! If the petition is successful it will cause the asset to be transferred retroactive, to the date of death, and will not require a full probate.
When evaluating whether a Heggstad petition will work we will analyze and review all the documents you have to see if there is enough to support a Heggstad petition. We don’t want to advise you do a Heggstad petition if it’s not likely to work as you will just be wasting time and money. We will generally give you an estimated chance of success as well as explain all of your options for transferring the property. Occasionally there are other options which make more sense so let us help analyze all the choices you have. However, a Heggstad petition is often the right answer when there is an unfunded trust. Contact us so we can review the documents your loved one left behind so we can see if a Heggstad petition is right for you!
A Heggstad petition filed under Probate Code 850 requires 30 days notice to all interested parties. In some cases personal service is required so make sure your attorney knows exactly what the probate code requires because failure to follow the rules specifically will cause a Heggstad petition to fail. This 30 day notice requirement is longer than the normal 15 day requirement of most other probate Court petitions. Aside from the longer notice period a Heggstad petition should be prepared, filed, heard by the Judge, and finished within approximately 60 days. This is substantially shorter than the 7 months minimum that a full probate takes.
An option that is often explored is if a full probate or a Heggstad petition makes more sense for a particular client. A Heggstad petition can never be guaranteed to work. A detailed analysis of both methods should be explored BEFORE your attorney prepares any petitions. In some cases doing a full probate just makes more sense. Know this going in so you don’t waste time and money. As stated above a Heggstad petition should take about two months to complete which is much shorter than the 7 months a full probate takes. However, with a full probate you should have “Letters” granted to you within about 6-8 weeks and be able to sell real property and other assets at that time. Thus the totality of the time is not the only issue to look at. When you will have authority to sell items is often the key issue!
In addition to Heggstad petitions other common petitions include petitions to fill a vacancy in the trustee’s role, petitions to instruct the trustee when the trust instrument is not clear, petition for accountings, and petitions to transfer assets. We are familiar with trust petitions so call us first! Many of these petitions are friendly petitions which can be filed without opposition. Other petitions we file, for example to remove a trustee who is not doing their job properly, can create a litigious atmosphere. We try to explain all the options and the likely outcomes of each so that you can make an educated decision about what is best for YOU!
Protecting yourself as the trustee is important. Hiring a law firm that understands what must be done is how you achieve that protection after death! Call us to discuss trust accountings, PC 16016.7 notice and other such requirements. Many people serve as trustee thinking that a trust is simple and they do not need an attorney. Unfortunately, this is not the case. Trusts were improperly marketed, in the past, as avoiding all attorney fees after death. This is simply not accurate in most cases. The trustee has a fiduciary duty which exposes them to a tremendous amount of liability. In this litigious society one wrong move can cost you. Please hire an attorney who is an expert in trust law so that you, as trustee, are protected! You would hate to find out after you distributed all the trust assets that you did something wrong as it can be very difficult to get money back from the beneficiaries… especially once it has been spent! Contact us to explain how we can help you in your case.
We live in a society where people make bad decisions. Unfortunately there are a lot of cases where the trustees actually mis-appropriate funds from the trust. However, in a lot of other cases they do not intentionally steal from the trust but make mistakes which can cost a beneficiary. It’s important to make sure you, as a beneficiary, have an expert reviewing the trustee’s work to make sure they are doing their job correctly. Hire an attorney to represent you to make sure things go smoothly in the trust administration process. We often are hired in “friendly” cases and we try to keep them friendly by making it clear we have only been hired to monitor proceedings and explain things to our client the beneficiary. Sure some of those friendly cases turn un-friendly but let us help you! In some cases we hire accountants to do years worth of forensic accounting work to uncover the thefts and in other cases we will bring in a litigation attorney to an file elder abuse case.
In conclusion trusts are much more complicated than your loved one may have been told when they set up their trust. Contact John Palley for expert advice and representation in all trust matters. Whether you are an individual trustee, a corporate trustee, a beneficiary, a creditor, or even just an interested party we can likely help you! Contact John at 888-920-5983, 916-920-5983 x405, email him at info@californiaprobate.info, or fill out the form below.
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