Preparing to File a Probate Code 850 Petition

If a court agrees to accept and review a Heggstad petition, it will need to review the circumstances of the case—an undertaking that requires plaintiffs to obtain both evidence of intent and documents pertinent to the formation and execution of the trust.

An ordinary Probate Code 850 claim requires the following:

  • A copy of the grantor’s revocable living trust documents
  • The trust’s Schedule of Assets, listing all properties, possessions, and other items intended to be transferred to the trust before or after the grantor’s death
  • The property deed or title of the asset to be recategorized
  • Information about the decedent and the decedent’s heirs
  • The decedent’s will, if a will was written and filed with the probate court

Filing and Defending a Heggstad Petition

Although the success of a Heggstad petition is at least somewhat dependent on the court’s interpretation of the decedent’s intent, the actual act of filing a Probate Code 850 petition is straightforward. It consists of the following steps:

  1. Collecting information about the trust
  2. Drafting the petition, which should include detailed information about the trust’s history and the current status of the contested asset or assets
  3. Compiling supporting documents, such as the trust’s Schedule of Assets, the declaration of any trust administrators, and a proposal for the recategorization of the property
  4. Filing the Heggstad petition in the Superior Court of the jurisdiction in which the trust was executed
  5. Sending a notice of the filed petition to the Office of the California Attorney General and all named trustees and trust beneficiaries

Once the court has received and reviewed the petition, it will schedule a hearing, during which the plaintiff and other interested parties will have an opportunity to support or contest the petition’s claims. Simple cases typically take anywhere between four and six months to resolve. However, a resolution can take either of two forms: an approval or a rejection.

Appealing a Rejected Heggstad Petition

If the Superior Court rejects a Heggstad petition, it will likely provide a reason. Common reasons for rejection include:

  • Insufficient evidence for the claim
  • An inability to establish the grantor’s intent
  • Procedural errors
  • Compelling counterclaims and arguments from opposed beneficiaries
  • Lack of standing

Depending on the reason provided, plaintiffs may be entitled to re-file their claim to better meet the court’s criteria or to try reaching a settlement with the trust or its other beneficiaries.

The Importance of Retaining Experience Legal Counsel

The approval or rejection of a Heggstad petition can have significant consequences for everyone involved in a trust’s administration, from successor trustees to heirs and beneficiaries—especially if the petition is denied and the contested asset is forced into probate.

The Law Firm of Kavesh, Minor & Otis, Inc. has spent decades helping Californians protect their loved ones’ legacies. We could help you:

  • Complete filing paperwork in accordance with state law
  • Meet deadlines and abide by procedural rules
  • Compile compelling evidence and create arguments informed by legal theory and court precedent

 If a property is on the line, every second counts—and every mistake, no matter how minor, could have repercussions that long outlast the length of proceedings.

Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.