The reason most people use revocable living trusts is to avoid probate. However, if the trust is not properly funded, a probate may be necessary under the terms of the pour-over will. Is a probate required when assets like real property or bank accounts are not funded into the trust? It depends. Unsure about trusts and estate planning? Contact a Roseville estate planning attorney of NewPoint Law Group.
How the Revocable Living Trust Works
Most revocable living trusts have a property schedule which identifies the property that the trustor intends to include in the trust. If, for example, the trustor listed his or her residence on the property schedule, but failed to execute a deed transferring the property to the trust, is a probate necessary? Probably not.
The case of Estate of Heggstad (1993) 16 Cal. App. 4th 943 held that an asset shall be deemed to be an asset of a revocable trust if the petitioner can prove by admissible evidence that the trustor intended the house to be an asset of the trust. Clearly, a grant deed signed by the grantor transferring title to the trust is proof of intent. Can that proof of intent be established in some manner other than by deed? The court in Heggstad answered in the affirmative.
In that case, the petitioner proved through admissible evidence that the trustor intended to include his house in his trust, though he did not execute a grant deed transferring the property into the trust. The court accepted the property schedule as proof of his intent within the trust that specifically identified the house. The trust instrument, specifically the property schedule, was considered admissible evidence sufficient to prove by a preponderance of evidence that the trustor intended his house to be an asset of the trust.
Thus, the probate court entered an order declaring that the house was an asset of the trust. The order, once certified, can be recorded and has the effect of vesting title to the trust. If the trustee wishes to sell the house, then he can do so, for title is vested in the trust.
Although a Heggstad petition does require the filing of a petition, it does not require publication of notice, and there should be just one hearing to obtain the order. Title can be vested to the trust in a matter of about 45 to 60 days, giving time for preparation of the petition and notice requirements imposed by the court. By contrast, in the absence of a Heggstad petition, a regular probate petition would be required, substantially increasing the costs and time, and in many cases, resulting in a failed escrow, as the buyer is unwilling to wait the additional time to close escrow through the regular probate process.
It should be noted that Heggstad petitions will not always work. If the property schedule in the trust does not identify the asset, then the property schedule and trust do not prove the trustor’s intent to include the asset in the trust.
If the property schedule identifies the asset in general terms, but not specifically, a Heggstad petition may or may not work, depending on how strict the trial judge views the rules of evidence.
A Roseville Estate Planning Attorney of NewPoint Law Group Can Look into Your Legal Matter and Give You Guidance
Under proper circumstances, a Heggstad petition is a cost-effective and relatively quick way to save an escrow and sale of real property. Every realtor and title officer should be aware of a Heggstad petition and have an estate planning or probate attorney who can quickly prepare and file it. Many real estate sales have been saved through the expeditious use of Heggstad petitions. If you are looking for guidance and support in your endeavors to develop a revocable trust, call the NewPoint Law Group at 1-800-358-0305 or a Roseville probate attorneys online today.