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Estate Plan: Transferring an Asset to Trust After Death

Heggstad Petition: Transferring an Asset to Trust After Death

Estate Plans may not include all of the assets. Can you transfer an asset to trust after death? MAYBE.

Generally, after the time of death a Living Trust or Revocable Trust becomes irrevocable. At that time, that Trust will go through a Trust Administration process to distribute the assets to the heirs. However, if an asset is left outside of that Trust, that asset may have to go through the Probate Court process. The decedent who created the Trust likely had the intent of avoiding Probate when creating the Trust. What can the Successor Trustee do to meet the decedent's intent of avoiding Probate and saving the decedent's estate from the expense of Probate?

In the case Estate of Heggstad (1993) 16 Cal. App. 4th 943 the decedent failed to transfer (or "deed") his home into his Trust prior to his death. Fortunately, the Trust instrument listed the home as an asset of the Trust on a Schedule of Assets. The Court ruled that even though the home was never in fact transferred to the Trust during life, the listing of the home as an asset of the Trust was sufficient to reflect that it was the decedent's intent for it to be a Trust asset. The home did not have to go through Probate.

An Estate Planning Attorney or Probate Attorney can help a Trustee analyze a Trust during the Trust Administration process and determine whether an unfunded Trust may be able to avoid Probate. If the Trust instrument contains the necessary language or schedule of assets to show intent, the Attorney can bring a Heggstad Petition per this case and California Probate Code Section 850. The Attorney will be able to assist the estate with a quicker and less expensive Court process than Probate in which the assets can be transferred into the Trust after the time of death. The attorneys at The Loftin Firm are experienced in bringing Heggstad Petitions before the San Diego Superior Court and can assist with your matter.

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