Using a Probate Code 850 Petition

I recently had a call with David, a man devastated because his mother, Eleanor, passed away with a seemingly simple estate. She had a trust, meticulously drafted years ago, but failed to transfer her brokerage account—containing over $150,000—into the name of the trust. This oversight, a common “oops” moment, meant his mother’s estate was facing full probate, costing him thousands in legal fees and delaying access to those funds for potentially over a year. He was understandably distraught; a simple oversight threatening to erase a significant portion of his inheritance.

Can a Heggstad Petition fix assets accidentally left out of a trust?

Absolutely. As an Estate Planning Attorney and CPA with over 35 years of experience, I frequently encounter situations like David’s. The good news is California Probate Code Section 850 provides a relatively straightforward, court-supervised process to correct these title errors. We call it a “Heggstad Petition,” named after the case that established the procedure. Essentially, if the evidence clearly demonstrates that your loved one intended an asset to be held in their trust (it was listed on the trust’s Schedule A, for example), but simply failed to formally retitle it, a Section 850 petition asks the court to declare that the asset is legally owned by the trust as if the transfer had occurred during their lifetime. This avoids full probate for that specific asset.

What evidence is needed to win a Probate Code 850 Petition?

The success of a Section 850 petition hinges on providing convincing evidence of the decedent’s intent. This typically includes a copy of the trust, the trust’s Schedule A (which lists assets intended to be held within the trust), account statements showing the asset in the decedent’s name, and a declaration from you—the petitioner—explaining the circumstances and confirming your mother’s intent. Sometimes, we also use witness statements or even emails or letters to bolster the case. It’s not enough to believe your mother wanted the asset in the trust; we need to present concrete evidence supporting that belief. As a CPA, I’m uniquely positioned to help clients gather and present the financial documentation needed to strengthen these petitions, particularly when complex investment accounts are involved.

What happens if there’s no clear evidence of intent?

If the evidence is weak or ambiguous, the court may deny the petition, forcing the asset into probate. This is why it’s crucial to gather as much supporting documentation as possible. In some cases, if the asset is relatively small, it might be more cost-effective to simply probate it rather than spend time and money pursuing a potentially unsuccessful Section 850 petition. That’s where my dual role as attorney and CPA comes into play—I can analyze the financial implications of both options and recommend the most sensible course of action.

How does this differ from other methods of avoiding probate?

There are several ways to avoid probate in California, each with its own requirements and limitations. For example, for deaths occurring on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit (Probate Code § 13100) has increased to $208,850. This procedure allows successors to collect personal property without court involvement. However, this total MUST NOT include assets held in joint tenancy, trust, or those with named beneficiaries (POD/TOD), but MUST include the value of any real property unless that property is handled via a separate summary procedure. Another option for primary residences valued up to $750,000 is the Petition for Succession under AB 2016 (Probate Code § 13151), but this is a court-filed Petition requiring a hearing and a Judge’s Order. A Section 850 petition is specifically for correcting a transfer error—an asset that should have been in the trust but wasn’t. It’s a targeted solution for a specific problem.

Ultimately, proactive estate planning is the best way to avoid these issues. Regularly reviewing and updating your trust, and ensuring all assets are properly titled, can save your loved ones significant time, expense, and emotional distress. Don’t let a simple oversight jeopardize your family’s financial security.

What determines whether a California probate estate closes smoothly or turns into litigation?

The path through California probate is rarely a straight line; it requires precise adherence to statutory deadlines, accurate asset characterization, and strict fiduciary compliance. Without a clear roadmap, what begins as a standard administrative proceeding can quickly dissolve into a costly battle over interpretation, valuation, and beneficiary rights.

To manage the estate’s value, separate property types by learning what counts as a probate asset, confirm exclusions through non-probate assets, and support valuation steps with probate inventory requirements to reduce disagreements about what is in the estate.

A stable probate administration outcome usually follows from clarity, consistency, and readiness for court review, especially when multiple stakeholders and competing interpretations are involved. When documentation supports enforcement and timelines are respected, families are less likely to face preventable escalation.

Verified Authority on California Probate Alternatives

• Personal Property Affidavit ($208,850 Limit): California Probate Code § 13100 (Small Estate Affidavit)
  For deaths on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit has increased to $208,850. This procedure allows successors to collect cash, stocks, and personal items without court involvement. Warning: This total MUST NOT include assets held in joint tenancy, trust, or those with named beneficiaries (POD/TOD), but MUST include the value of real property unless handled via a separate summary procedure.
• Primary Residence Succession (AB 2016): California Probate Code § 13151 (Petition for Succession)
  You must distinguish between the Affidavit for Real Property of Small Value (strictly for property <$69,625) and AB 2016. Under AB 2016, a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate. This is a court-filed Petition requiring a Judge’s Order, though it is significantly faster than full administration.
• Spousal Property Petition (Unlimited): California Probate Code § 13650 (Spousal Transfers)
  This powerful alternative allows for the transfer of unlimited assets to a surviving spouse or domestic partner without full probate administration, regardless of the estate’s value. It is strictly for assets passing to a spouse and requires the property be characterized as community property or quasi-community property.
• Trust Assets & The “Heggstad” Petition: California Probate Code § 850 (Heggstad Petition)
  If a decedent intended an asset to be in their trust (e.g., listed on Schedule A) but failed to retitle it (the “Oops” factor), a Section 850 Petition can obtain a court order confirming the asset as trust property. This “cures” the title defect and avoids opening a full probate estate for that single asset.
• Vacant Land & Timeshares: California Probate Code § 13200 (Real Property of Small Value)
  For real property interests valued at less than $69,625 (the 2025/2026 adjusted limit), successors can file an Affidavit for Real Property of Small Value with the Court Clerk and record a certified copy with the County Recorder. This completely bypasses the need for a hearing or judge’s order.
• Vehicle & Vessel Transfers (DMV): DMV Form REG 5 (Affidavit for Transfer Without Probate)
  Vehicles and vessels may be transferred outside of probate using the Affidavit for Transfer Without Probate (REG 5). Critically, the value of the vehicle is excluded from the $208,850 small estate calculation, meaning a high-value car does not disqualify an estate from using summary procedures.
• Digital Asset Access (RUFADAA): California Probate Code § 870 (RUFADAA)
  Even in summary administration, digital assets can be locked. Without specific RUFADAA language (Probate Code § 870) in your Will or Trust, service providers like Coinbase and Google can legally deny successors access to digital wallets and accounts, forcing a full probate just to retrieve them.