Post death funding of trust with a “Heggstad Petition” in probate court

In the Estate of Heggstad (1993) 16 Cal.App.4th 943, 20 Cal.Rptr.2d 433, the court determined a written declaration of trust by an owner of real property was sufficient to create a trust. The Heggstad court did not require a separate deed transferring the property to the trust. 

So a trust may be funded after the death of a property owner.

Sometimes this is not as easy as it would appear. For example the San Diego Superior Court requires the following in the petition:

  •  The vesting of each asset at all relevant times;
  •  Evidence that each asset was placed in trust;
  •  Evidence of every transaction affecting title to each asset in question during the relevant time.
  •  Where a transaction takes legal title to an asset out of the trust or occurs when title is not held by the trustee, evidence to overcome the inference that the Trustor intended that the transaction be considered a non-trust transaction

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