Moving Beyond a Trust Schedule with a Heggstad Petition
Success with a Heggstad petition under California Probate Code § 850 ultimately turns on one central question: Did the decedent (the trust creator, or settlor) clearly intend for the asset to be part of their revocable living trust? California courts place a high priority on honoring the settlor's wishes, but they require strong, written evidence of that intent — not just assumptions, family recollections, or verbal statements.
Key Takeaways
California has developed case law expanding Estate of Heggstad
Navigating a course to correct these mistake can be complex, and it's important to have an experienced Heggstad attorney
COMMON TRUST MISTAKES AND THEIR CONSEQUENCES
The landmark case Estate of Heggstad (1993) 16 Cal. App. 4th 943 established the foundation: A written declaration in the trust document, combined with a Schedule of Assets (often called Schedule A) that specifically lists the property (e.g., the family home's address or an investment account number), is sufficient to prove intent — even if no formal deed or title transfer occurred during the settlor's lifetime. In that case, the court ruled that the attached schedule demonstrated clear intent, allowing the property to be confirmed as a trust asset without full probate.
Subsequent cases have built on this, showing both what strengthens and what weakens a petition:
Strongest Evidence (High Likelihood of Success):
A detailed Schedule A explicitly naming the asset (e.g., "123 Main Street, Anytown, CA" or specific account details). This is the gold standard and frequently leads to approval in uncontested cases.
General assignment clauses in the trust declaring "all my right, title, and interest in real and personal property" transferred to the trust. Courts have accepted these when supported by extrinsic evidence (like public records showing ownership), as in cases where a broad "all real property" clause was enough — even without specific descriptions — because title records confirmed the settlor's ownership.
Other supporting written documents, such as trust amendments, contemporaneous notes, declarations from the drafting attorney, or correspondence showing the settlor's plan to include the asset.
Weaker or Insufficient Evidence (Often Leads to Denial or Contested Hearings):
Mere verbal assurances ("Mom said she wanted the house in the trust") or after-the-fact affidavits from family members.
No specific reference to the asset in trust documents coupled with no extrinsic proof tying it to intent.
Situations where the trust's schedule is vague, outdated, or doesn't match current ownership (e.g., after-acquired assets not contemplated).
Opposed petitions, where beneficiaries or heirs contest the claim, forcing a full hearing with arguments and additional evidence.
Courts apply a "clear and convincing" standard for intent in these petitions — meaning the evidence must be highly probable and leave little doubt. Unopposed petitions with solid documentation (like a clear Schedule A) often resolve quickly (weeks to months) without a hearing. If contested, the court may require testimony, declarations, or even expert input, extending the timeline. This standard requires that the evidence presented — such as a schedule of assets, general assignment clauses in the trust, or other written declarations — make it highly probable that the settlor intended the asset to be part of the trust, leaving little room for doubt. It's a heightened burden compared to "preponderance of the evidence" (used in many civil matters), but lower than "beyond a reasonable doubt" (criminal standard)
The bottom line: Documentation is everything. The more written proof you have of the settlor's intent — ideally from the trust itself — the stronger your position. Courts aim to avoid unnecessary probate when the settlor's wishes are evident, but they won't stretch to fill gaps in evidence
EXPERIENCED HEGGSTAD ATTORNEY
At Schlau Rogers LLP, we focus on building compelling cases for Heggstad petitions by meticulously gathering and presenting the right evidence from the outset. Our small, client-focused team provides direct attorney access (email, text, or call), free initial consultations (with strategy sessions or house calls for convenience), fixed fees with flexible options, and secure virtual tools for efficient document sharing and updates. We handle the full process — from evidence review and petition preparation to notice, court filings, and appearances — tailoring our approach to your unique situation to maximize success and minimize stress.
If you're a trustee or beneficiary wondering whether your evidence measures up for a Heggstad petition, don't guess — contact us today for a no-obligation consultation. We're committed to delivering smarter, personalized solutions that honor your loved one's legacy and deliver real results. For more information on trusts, you can explore our estate planning practice and Resources for further discussion in this regard or schedule a strategy session today. Keep planning smarter.
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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