Funding your California living trust with your property is an important step to avoiding probate. Listing all of your assets on a schedule attached to your living trust – and updating that list whenever you acquire another asset – is also important especially if the listed assets have not been transferred into and owned by your living trust. Your property in counties of Los Angeles, Orange, Santa Barbara and Ventura (to name a few) which is not owned by your California living trust may be subject to the probate proceedings which are costly and long.
For property that is not owned by your living trust but which you listed on a schedule attached to your living trust, you may be able to avoid probate. It may be possible to get a court order which determines that property held in the decedent’s individual name is actually trust property. Filing with the court a Heggstad Petition (named after a 1993 California case Estate of Heggstad, 16 CA4th 943, 20 CR2d 433), a successor trustee may claim that property was intended to be owned by the trust simply because it was listed on the schedule of assets intended to be a part of the trust. If the California probate court grants the petition, the Court issues an order declaring that the property is in fact trust property.
The Heggstad Petition avoids a full probate of the assets that were not transferred to the trust and is therefore more cost-efficient. However the best way to avoid probate is to clearly transfer the property to the trust and to list it in the property schedule.
Speak with a California probate attorney about this. Call Mitchell A. Port at (310) 559-5259.