Evidence of Intent in Heggstad Petitions
When a Heggstad petition under Probate Code § 850 faces opposition from beneficiaries, heirs, creditors, or other interested parties, the case often escalates to a contested hearing or even limited discovery and testimony. In these scenarios, the "clear and convincing" evidentiary standard becomes more demanding, and extrinsic evidence—materials and declarations outside the four corners of the trust document itself—plays a pivotal role in tipping the balance toward approval.
Key Takeaways
Extrinsic evidence can be used to demonstrate intent in proceedings to determine trust property
Navigating CA probate, evidence and civil procedure rules can be complex, and it's important to have an experienced Heggstad attorney
EXTRINSIC EVIDENCE IN HEGGSTAD CASES
Extrinsic evidence helps bridge gaps when trust language is broad, ambiguous, or challenged. Note that all extrinsic evidence discussed below is subject to California’s rules of evidence, including requirements for relevance (Evidence Code § 210), foundational support and authentication (Evidence Code §§ 400–403, 1400–1454), and hearsay rules along with applicable exceptions (Evidence Code §§ 1200–1380). Admissibility is not automatic and depends on the specific context of the case, the judge’s discretion (including under § 352 to exclude if unduly prejudicial, confusing, or time-consuming), and whether the evidence is offered in an uncontested affidavit stage (more lenient under Code of Civil Procedure § 2009) or a contested evidentiary hearing (stricter live testimony and cross-examination rules). Effective types of extrinsic evidence include:
Declarations from the drafting attorney — Affidavits explaining the settlor's instructions, funding discussions, or why certain assets weren't retitled (e.g., oversight during a refinance).
Examples from Practice: In a contested 2021 San Bernardino County petition (anonymized), beneficiaries challenged inclusion of a commercial building, arguing the settlor never intended it for the trust. The drafting attorney submitted a sworn declaration explaining that the settlor specifically instructed him to use a broad assignment clause to cover the building due to ongoing lease negotiations, and provided contemporaneous notes from the trust-drafting meeting. The court found this extrinsic evidence decisive, granting the petition over the objections and avoiding full probate.
Contemporaneous writings — Emails, letters, notes, or memos from the settlor referencing the asset as part of the trust plan.
Examples from Practice: During a 2023 Riverside County contested hearing (anonymized), heirs objected to transferring two brokerage accounts, claiming the settlor wanted them to pass directly to them. The trustee introduced several emails the settlor sent to family members shortly after trust execution stating "the investment accounts are in the trust for everyone," along with a handwritten note on a trust summary page. The court deemed these writings clear and convincing evidence of intent, approving the Heggstad petition despite the family dispute.
Historical and supporting records — Bank/brokerage statements, tax returns (Schedule B showing trust reporting), insurance policies, or property tax bills demonstrating the settlor treated the asset as trust-owned.
Examples from Practice: In a 2024 Ventura County matter (anonymized), a contested petition for a rental property faced opposition from a sibling beneficiary who claimed the settlor excluded it intentionally. The trustee presented five years of property tax bills paid from the trust checking account, insurance policies listing the trust as an additional insured, and Schedule E tax returns reporting rental income under the trust's EIN. The court relied on this objective historical evidence to confirm the settlor's intent and ownership treatment, granting the transfer and sidestepping probate.
Witness testimony or declarations — Statements from family members, financial advisors, or others who heard the settlor express intent (though these carry less weight than writings).
Examples from Practice: In an anonymized 2022 Santa Clara County contested case, a beneficiary objected to including a vacation condo, asserting the settlor told her it was meant for her alone. The trustee countered with declarations from two long-time financial advisors who testified that the settlor repeatedly described the condo as "part of my trust portfolio for all the kids" during annual reviews. Combined with the trust's general assignment clause, this testimony helped sway the court to find clear intent, approving the petition over the objection.
Post-creation actions — Evidence like trust accountings or amendments that implicitly include the asset.
Examples from Practice: In a 2025 Los Angeles County contested petition (anonymized), heirs disputed whether a stock portfolio belonged in the trust, pointing to the lack of specific retitling. The trustee submitted post-execution evidence showing the settlor filed amended trust documents referencing the portfolio, directed dividends to the trust bank account for three years, and included portfolio updates in trust summaries sent to the trustee. The court viewed this consistent post-execution conduct as strong extrinsic proof of intent, ultimately confirming the assets as trust property and avoiding probate.
Case law supports this layered approach: Building on Heggstad, Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal. App. 4th 156 states a broad "all [real] property" clause successfully evidences extrinsic proof of ownership. Similarly, contested Heggstad filings often turn on combining trust schedules with attorney or witness declarations to overcome objections (e.g., claims the asset was deliberately excluded). Without strong extrinsic support, courts may deny the petition, forcing the asset into full probate.
Contested petitions add complexity: Expect continuances, discovery requests, and higher scrutiny. Early preparation—gathering declarations and records before filing—can lead to settlements or stronger hearings.
EXPERIENCED HEGGSTAD ATTORNEY
At Schlau Rogers LLP, we excel at contested Heggstad matters by proactively building comprehensive evidence packages. Our client-centered practice offers direct attorney access for ongoing strategy (email, text, call, or secure chat), complimentary initial consultations (with prepared checklists and house calls when helpful), fixed fees with flexible payment options, and advanced virtual tools for encrypted collaboration, document review, video hearings, and real-time updates. We handle everything—from gathering declarations and records to negotiating settlements or litigating hearings—with a personalized approach that accounts for family dynamics and your goals.
If opposition is brewing or your petition has been challenged, contact us today for a no-obligation strategy session. We're dedicated to delivering smarter, evidence-driven outcomes that protect your loved one's wishes and your family's interests. For more information on trusts, you can explore our estate planning practice and Resources.
Matthew Schlau is a co-founding principal of Schlau|Rogers and an estate and business planning lawyer practicing in Orange, San Diego, Los Angeles and Riverside counties. He is a husband, father, blogger, crossfitter, and really good at helping people achieve their goals.
At Schlau|Rogers, we do more than just estate and business planning, probate and trust administration. Our objective is to provide individually-tailored plans that allow you the opportunity to reach your goals, all while minimizing headaches and risk, and maximizing peace of mind.
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