Avoid Denial of Your Heggstad Petition By Demonstrating Intent
Filing a Heggstad petition under California Probate Code § 850 is often the most efficient way to bring unfunded assets back into a revocable living trust without the delays and costs of full probate. However, even strong cases can be denied if key requirements aren't met. Courts apply a "clear and convincing" evidentiary standard to prove the settlor's (decedent's) intent, meaning the evidence must be highly probable and leave little doubt. Denials happen regularly enough that experienced probate attorneys treat them as a real risk—especially in self-filed or under-prepared petitions.
Key Takeaways
Heggstad petitions efficiently avoid probate, provided they are adequately supported
Navigating probate case law and code can be complex, and it's important to have an experienced Heggstad attorney
Here are the top 5 common reasons Heggstad petitions are denied, based on case law, court rulings, and frequent probate practice observations:
INSUFFICIENT OR AMBIGUOUS EVIDENCE OF INTENT
This is by far the most frequent cause of denial. If the trust lacks a detailed Schedule A (or equivalent) specifically listing the asset (e.g., the property's address, account number, or clear description), or if there's no general assignment clause supported by extrinsic evidence, the court won't infer intent. Verbal statements, family recollections, or vague trust language ("all my property") rarely suffice alone.
Examples from Practice: In cases like Osswald v. Anderson (1996) 49 Cal. App. 4th 812, courts denied petitions where no property was identified or described at all. In Osswald, the Court of Appeal denied the petition to include real property in unfunded irrevocable trusts because the trust declaration lacked any property description or identification, failing to comply with Probate Code § 15206's statute of frauds requirement for a written instrument or valid deed to evidence a trust in real property. This distinguished it from Heggstad, where a signed declaration with a specific property schedule sufficed, emphasizing that without clear written identification, courts cannot infer intent to fund the trust. The case illustrates how missing or inadequate descriptions lead to denials, as subsequent deeds were also invalid, leaving the property outside the trusts and subject to joint tenancy succession. Similarly, trial-level denials often occur when the schedule is missing, outdated, or doesn't match current ownership.
How to Strengthen: Layer evidence—combine a specific Schedule A with supporting documents like trust amendments, drafting attorney declarations, tax records, or historical title docs. The more contemporaneous and written the proof, the better.
PROCEDURAL ERRORS OR NON-COMPLIANCE WITH NOTICE REQUIREMENTS
Probate Code § 850 requires 30 days notice to all interested parties (beneficiaries, heirs, creditors), and sometimes personal service in some counties or for certain assets. Missing deadlines, improper service, wrong venue, or failing to file required proofs of service can lead to automatic denial or dismissal without prejudice. Self-represented filers frequently trip here due to complex local rules that are layered on top of state code and case law.
Examples from Practice: In a 2022 San Diego County probate matter (anonymized), a Heggstad petition was dismissed when the petitioner failed to serve notice on a distant heir via certified mail, leading to objections and a reset hearing; the court cited Probate Code § 1215 non-compliance. Similarly, venue errors in multi-county asset cases (e.g., filing in Los Angeles for Orange County property) can result in transfers or denials, delaying resolution by months.
How to Strengthen: Work with an attorney familiar with your county's probate division (e.g., Orange, Los Angeles, or Santa Clara) to ensure exact compliance. File early and verify notice proofs are lodged before hearings.
CONTESTED PETITIONS OR OBJECTIONS FROM INTERESTED PARTIES
When beneficiaries, heirs, or creditors object (e.g., disputing intent or claiming the asset should pass differently), the case shifts to a contested hearing. Weak evidence often fails under scrutiny, leading to denial. Objections can stem from family disagreements or perceived unfairness. Creditor objections in high-debt estates often succeed if the petitioner can't prove the asset was never intended for probate exposure.
Examples from Practice: In a contested Alameda County case around 2018 (anonymized), a beneficiary objected to including an investment account in the trust, arguing the settlor's verbal intent to exclude it; the court denied the petition due to insufficient written counter-evidence, echoing disputes in Estate of Duke (2015) 61 Cal. 4th 871 where family challenges highlighted the need for clear documentation. In Estate of Duke, the California Supreme Court held that an unambiguous will may be reformed if clear and convincing extrinsic evidence establishes that the will contains a mistake in expressing the testator's actual specific intent at the time of drafting, such as omitting a contingency for the primary beneficiary predeceasing the testator. The case involved Irving Duke's holographic will, which left his estate to his wife or, if they died simultaneously, to charities, but lacked provisions if she predeceased him. The Court overruled prior categorical bars on reforming unambiguous wills, remanding to allow evidence of Duke's intent to benefit the charities in that scenario, prioritizing honoring testator wishes over strict formality to avoid intestacy. Estate of Duke echoes the evidentiary challenges in contested Heggstad petitions by emphasizing the role of clear and convincing extrinsic evidence (e.g., declarations, historical records) to resolve family disputes over intent, much like how Heggstad relies on written trust declarations, schedules, or supporting proof to confirm unfunded assets as trust property despite formal transfer oversights. In both contexts, courts favor admitting such evidence to honor the settlor/testator's documented wishes and prevent unjust outcomes like intestacy or probate exposure, highlighting why insufficient written counter-evidence in contested cases (as in the Alameda County example) often leads to denial, reinforcing the need for robust documentation to counter objections from beneficiaries or heirs.
How to Strengthen: Anticipate opposition by communicating early with all parties and building an airtight evidentiary package. In contested scenarios, extrinsic evidence (e.g., witness declarations) becomes even more critical to meet the "clear and convincing" threshold.
ASSET DOESN’T QUALIFY OR LEGAL BARRIERS APPLY
Not every asset fits: Out-of-state property may require ancillary proceedings, jointly held assets might need different treatment, or certain transfers (e.g., those violating statute of frauds for real property without sufficient writing) can bar relief. Courts have denied petitions where the trust language didn't satisfy formal requirements for real estate.
Examples from Practice: In a 2024 Riverside County filing (anonymized), a petition for Arizona rental property was denied because California courts lacked jurisdiction without ancillary probate, similar to multi-state issues in cases where out-of-state assets required separate proceedings. Joint tenancy denials are common too, as in cases where survivorship rights trump vague trust assignments without severance evidence.
How to Strengthen: Conduct a full asset review upfront. For real property, ensure the trust's assignment clause (e.g., "all real property wherever situated") is backed by ownership proof, as affirmed in cases like Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal. App. 4th 156.
DIY OR INCOMPLETE FILINGS WITHOUT PROFESSIONAL REVIEW
Many denials stem from self-filed petitions missing key elements: incomplete declarations, lack of verified petition, no proposed order, or failure to address potential issues like minor/incapacitated beneficiaries. DIY efforts often omit handling for minor beneficiaries under the probate code, resulting in mandatory guardian ad litem appointments and dismissals. The process is technical, and courts won't "fill in the blanks."
Examples from Practice: A self-represented filer in Sacramento County (anonymized 2023 case) had their petition rejected for lacking a verified declaration and proposed order, mirroring procedural lapses in Estate of Giraldin (2012) 55 Cal. 4th 1058 where incomplete filings led to appeals and delays. Estate of Giraldin underscores the risks of incomplete or self-filed trust-related petitions by illustrating how procedural shortcomings (here, the Court of Appeal's initial dismissal for lack of standing) can derail even meritorious claims until corrected on appeal, emphasizing that trust beneficiaries pursuing fiduciary breach claims or accountings must navigate complex standing and evidentiary rules. In the context of DIY Heggstad or § 17200 petitions, similar incomplete filings—missing verified declarations, proposed orders, or proper jurisdictional/standing analysis—often lead to dismissals or denials at the trial level, as courts strictly enforce technical requirements and won't overlook gaps in self-represented efforts. This case highlights why professional review is crucial: even strong underlying facts (like alleged breaches) can be lost without precise pleading and compliance, reinforcing that incomplete DIY filings frequently result in rejections, appeals, or unnecessary delays in trust administration.
How to Strengthen: Engage experienced counsel early for a thorough document review and strategic filing. Professional preparation dramatically increases success rates in uncontested cases.
EXPERIENCED HEGGSTAD ATTORNEY
What Happens if Denied? Denials often come without prejudice (you can refile with fixes) or with prejudice (requiring appeal or shifting to probate). Appeals are possible but time-consuming and costly—better to prevent denial through strong prep and experienced counsel.
At Schlau Rogers LLP, we minimize these risks by treating every Heggstad petition with meticulous care. Our small, dedicated team offers direct attorney access (via email, text, or call), complimentary initial consultations (including strategy sessions or house calls for convenience), fixed fees with flexible options, and secure virtual tools for efficient document sharing and updates. We focus on gathering and presenting compelling evidence from the start, tailoring our approach to your county's practices and your unique family dynamics.
If you're considering a Heggstad petition and want to avoid common pitfalls, don't go it alone—contact us today for a no-obligation review. We're here to deliver smarter, more secure solutions that honor your loved one's intent and protect your family's future.
For more information, you can explore our estate planning practice, Resources 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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