The Problem: When Your Trust Doesn't Include Everything
You did the right thing. You created a living trust to protect your family and avoid probate. But then something happens that catches many people off guard: your family discovers that some of your assets were never actually transferred into the trust. Maybe it's a rental property, a bank account, or investment holdings that got overlooked during the initial setup. Maybe it's the fact that you had refinanced your home, and the lender required you to take it out of trust ownership, and you never put it back in. Your trust document says these assets should be managed by your trustee, but the title or deed still shows your name alone.
This creates a real problem. If something happens to you, those assets outside the trust could end up in probate anyway. That means months of court proceedings, expensive court fees, and delays that your family doesn't need. The very thing you set out to prevent becomes a reality.
The good news: Santa Clara County has a specific legal tool to fix this after you are gone. It's called a Heggstad Petition, named after a California case that established this process. Instead of redoing your entire trust or waiting for probate court, you can ask the court to acknowledge that the forgotten assets should be treated as if they were already in your trust. We help families in Santa Clara County use this process to correct these oversights quickly and affordably.
Why Assets Get Left Behind During Trust Planning
Assets slip through the cracks for surprisingly common reasons. Sometimes it's an oversight during the initial planning process. A property gets purchased after the trust is created, and in the busy aftermath of moving or managing business, the retitling gets pushed aside. Other times, beneficiaries inherit property that was never transferred into the trust, or an account gets opened years later without the trustee's name formally added.
We've also seen situations where the original attorney who drafted the trust didn't provide clear written instructions about which assets needed to be retitled. If a client received generic guidance without specific action items tied to each property or account, details get missed. Life happens: people relocate, get married, buy investment property, or inherit holdings. The trust document is solid, but the actual property transfer paperwork never gets completed.
Another frequent scenario involves financial institutions. Some banks or investment firms don't make it easy to add a trust as the account holder. A client might assume it's done when it isn't, or they might have been given conflicting information about whether the account needed to be formally retitled.
The technical term for this issue is "property not retitled." It's one of the most common problems we encounter when families come to us to administer a parent's trust after death.
What to do next: Review your trust's asset schedule and compare it against your actual deeds, titles, and account registrations. Mismatch? That's your signal to contact us to get everything corrected before you pass away.
How Heggstad Petitions Work in Santa Clara County
A Heggstad Petition is a formal request to the Santa Clara County Probate Court asking the judge to confirm that property belongs in your trust, even though the formal paperwork wasn't completed during your lifetime. The petition essentially asks the court to acknowledge the intent behind your trust and order that the property be treated as trust assets.
Here's how the process flows in Santa Clara County:
We prepare a detailed petition that explains what property was left out, why it should be in the trust, and how all the interested parties (beneficiaries and your trustees) agree this correction is proper. The petition includes supporting documents like your trust, the property deeds, and declarations from people who can confirm your intent.
Unlike contested court cases, our uncontested petitions are filed "ex parte," meaning without a formal hearing. We submit everything electronically to the court, and the judge reviews the paperwork in chambers. Santa Clara County typically grants ex parte Heggstad Petitions within 7 to 10 days of the e-filing date.
Once the court approves the petition, we receive an order that can be recorded with the county assessor's office or provided to financial institutions. That order becomes the legal documentation showing the property now belongs to your trust. No public hearing, no adversarial proceedings, and no unexpected delays.
This process also works well for trust modification petitions under California Probate Code Sections 15403 and 15409, which allow you to correct trust language, add missing provisions, or make other changes.
What to do next: If as a successor trustee need a Heggstad Petition filed, contact our office with your the documents and a list of properties you believe were left out. We'll conduct a thorough review before filing anything with the court.
Why You Need an Attorney Who Understands Local Court Rules
Santa Clara County's court system has specific preferences and procedures for how petitions should be formatted, what supporting documents are required, and how ex parte filings are handled. File incorrectly, and you might face delays, corrections, or even dismissal. Get it right, and your petition moves through the system smoothly.
We work regularly with the Santa Clara County Probate Court and understand exactly what the judges expect. We know how to present facts and the law to get approval, and which procedural shortcuts are acceptable. This local expertise saves time and prevents costly mistakes.
Beyond Santa Clara County, we regularly file uncontested Heggstad and trust modification petitions in San Mateo and Contra Costa Counties as well. In those courts, uncontested ex parte petitions can often be filed and granted the same day in San Mateo County, and in Contra Costa County if we can demonstrate urgency. We also assist attorneys, title companies, and clients throughout California with uncontested Heggstad petitions under Probate Code Section 850, filing them ex parte in Santa Clara County Court by moving the place of administration to this county
An attorney unfamiliar with Heggstad petitions and local court rules might over-explain simple concepts, include unnecessary exhibits, or miss filing deadlines. We avoid these pitfalls by staying deeply familiar with Santa Clara County's specific expectations and preferences.
What to do next: When you're ready to move forward, choose an attorney with direct Santa Clara County court experience, not someone handling Heggstad Petitions as a side service.
Our Direct Approach to Heggstad Petition Preparation
We don't use templates or cookie-cutter language. Each Heggstad Petition we prepare is customized to your specific situation, property, and family dynamics. We start with a detailed conversation about what went wrong and why the property should have been in your trust from the beginning.
Our process is straightforward:
First, we review your trust, all property deeds and titles, and any account registrations. We identify exactly which assets fall outside the trust and assess whether a Heggstad Petition would be successful in getting those assets into the trust.
Second, we prepare the petition with precise, clear language explaining the issue and your intent. We make sure every document the court needs is attached.
Third, we e-file everything with Santa Clara County Probate Court and monitor the filing. We follow up to ensure timely approval and coordinate with you on next steps once the court grants the petition.
Throughout this process, you work directly with us. This means no surprise calls from junior associates, no confusion about who's handling your case, and no delays from miscommunication. We believe you deserve to work with an attorney who actually knows your family's situation and can answer your questions directly.
What to do next: Call our office or visit our website to schedule a confidential consultation. We'll review your trust and property records at no cost and tell you exactly what needs to happen next.
The Cost of Waiting vs. Acting Now
Delaying a Heggstad Petition can be surprisingly expensive. If you pass away before correcting the omission, that property enters probate. In California, probate costs typically run 3% to 7% of the property's value when you account for court fees, attorney time, and administrative expenses. On a $500,000 property left out of your trust, probate costs could reach $15,000 to $35,000.
A Heggstad Petition? Our fees are typically a fraction of that amount, and the process takes two to three weeks from start to finish.
There's also the emotional cost to your family. Probate proceedings are time-consuming and stressful for beneficiaries. They require court involvement, formal notices, and delays in distributions. Heggstad petition can spare your loved ones from months of legal complications during an already difficult time.
Beyond that, property values change. Interest and equity accumulate. The longer you wait, the more the overlooked asset might be worth, which increases both probate costs and taxes your estate might owe.
What to do next: If if you're a successor trustee and you've been meaning to address this, schedule a consultation this month. The cost difference between acting now and waiting could be substantial.
How We Guide You Through the Heggstad Process
From the moment you contact us, we manage the process with clear communication at every stage. You'll understand what's happening, why we're doing it, and what comes next. No legal jargon, no surprises.
Once we've reviewed your documents and confirmed a Heggstad Petition is appropriate, we'll explain the timeline. You can expect us to prepare and file the petition within 7 to 10 days. After filing, Santa Clara County typically grants uncontested ex parte petitions within another 7 to 10 days.
We'll coordinate with any other trustees or beneficiaries who need to sign declarations or consent forms. We handle all the paperwork and court filings. Once the court grants the petition, we'll provide you with certified copies of the order and explain how to record it or present it to financial institutions.
If questions arise during the process, you can reach us directly. We answer calls and emails promptly because we understand that trust issues can feel urgent and personal.
We also invite you to listen to Plan Your Estate Radio, which airs Monday afternoons from 2:00PM to 3:00PM on 1220 AM, KDOW in the San Francisco Bay Area. You can hear real discussions about trust planning, asset protection, and probate avoidance, including Heggstad petitions. If you prefer learning at your own pace, visit our on-demand webinars at www.lawbob.com/webinars for detailed explanations of estate planning, the reasons to do planning and what we're trying to accomplish with proper planning, my planning process, and the fixed fees I charge for various levels of planning.
What to do next: Gather your trust documents and property titles, then reach out to us with a brief description of which assets were left out. We'll take it from there.
Common Questions About Heggstad Petitions in Santa Clara County
Is the court approval guaranteed?
With an uncontested ex parte petition where all parties agree, approval is highly likely. We don't file petitions we believe will be rejected. That said, the court is the final decision-maker, which is why we prepare petitions with thorough documentation and clear reasoning.
What happens after the petition is granted?
The court's order serves as proof that the property now belongs to your trust. You can record this order with the county assessor if it's real property or provide copies to banks or investment firms to update their records.
What to do next: If you have additional questions, don't hesitate to call. Many clients find that a brief conversation clears up confusion better than email exchanges.
Protecting Your Family's Legacy Starting Today
Your trust was created with the best intentions: to protect your family, avoid probate, and ensure your wishes are honored. Assets left out of that trust undermine everything you worked to accomplish. The good news is that if you failed to do that during your lifetime, Santa Clara County's Heggstad Petition process gives a practical, affordable way to fix these oversights after you have passed, as long as there is sufficient written evidence of your intention concerning each asset.
For further reading: Forgotten property retitling.
Contact our office today for a free consultation.
Frequently Asked Questions (FAQ)
What is a Heggstad petition and when do we recommend filing one?
A Heggstad petition is a legal process we use to add assets that were accidentally left out of your trust without having to go through full probate. We recommend that successor trustee file one when they discover property, bank accounts, or other assets that should have been transferred into your trust during your lifetime. The faster and less expensive way to correct such mistakes is to handle them while you're still alive. But if you've already passed, eligible assets can be transferred by Heggstad Petition without your family having to deal with probate later.
Why does our office handle Heggstad petitions differently than other firms?
We draft your petition directly with you rather than outsourcing the work, which means we understand exactly how your trust was set up and why assets were missed. We also know the specific requirements of Santa Clara County courts, so we prepare petitions that move through the system efficiently without unnecessary delays or rejections.
How much does it cost to fix assets left out of our trust through a Heggstad petition?
Our fees are significantly lower than what you'd pay in probate costs down the road. Currently, our fixed fee is $6,500, but additional fees might be incurred if there are one or more minor beneficiaries, incapacitated beneficiaries, or missing beneficiaries. We always discuss our fees upfront before we begin any work, so you know exactly what to expect without surprises.
