The House Wasn't in the Trust. Does It Have to Go Through Probate?

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This happened in my own family.

My parents had a living trust, but their home was never put into it. When they passed away, I thought I had to go through probate. That's a long process. In California, formal probate typically takes 9 to 18 months, and the fees are set by law based on the value of the estate.

Then I found out there was another way.

What is a Heggstad petition?

It's named after a 1993 California court case, Estate of Heggstad. The court said that when a person signs a written trust that declares they're holding a property in trust, that can be enough to make the property part of the trust — even without a separate deed.

So if the trust papers show that Mom and Dad meant for the house to be in the trust (for example, the house is listed in the trust), an attorney can ask the court to confirm that the house belongs to the trust. The legal request is filed under California Probate Code section 850.

What it meant for my family

We were able to show that my parents intended for the home to be in their trust. All it took was a filing by an attorney and approval by the court. The home stayed out of probate, and it saved me literally thousands upon thousands of dollars.

Is it right for your family?

It depends on what the trust papers say. It doesn't work for every family, and only an attorney can tell you if it fits your situation.

If you've found out a parent's home was never put into the trust, don't panic. Talk with a probate attorney before you assume the worst. If you don't have one, I'm happy to share names of attorneys I trust. And when you're ready to sell, I'll walk you through every step.

I'm not an attorney and can't give legal advice. I work alongside families and their attorneys to sell the home and keep things moving.

Helen K. Burke, REALTOR® | Residential Sales, Probate & Trust, NOD

Intero Real Estate | DRE #01175866 | 408-835-8967

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