The house was never put in the trust. Now what?

It happens more often than most families expect. A parent signed a living trust years ago, but the deed to the house was never updated. Title is still in the parent’s name, and the discovery tends to surface at the worst possible moment: in the weeks after a death, when the family is grieving and the house is often the largest asset in the estate.

Sometimes the house was in the trust once. When owners refinance, a lender may ask that the property be deeded out of the trust to close the loan, and the deed returning it to the trust is never recorded once the refinance is complete. Years later, no one remembers the step that was missed.

Many families assume the property must now go through probate. That is not necessarily so.

A remedy with a long history

Since the early 1990s, California courts have recognized that property may belong to a trust even when the deed was never changed. Through what practitioners call a Heggstad petition, after the case that established the principle, a trustee may ask the probate court to confirm that the property is part of the trust and should pass as the trust directs.

The details decide

Whether a petition is the right course, and how strong it is likely to be, depends on the signed documents, the way the property is described, its ownership history and the evident intent of the trust’s creator. Judges have discretion in weighing that evidence, and practice varies from court to court. Two families with nearly identical paperwork can face quite different questions. That is why an experienced attorney’s review should come first.

Before you act

Please do not record a new deed, transfer the property or sign anything that affects it before seeking counsel. Well-meant steps can complicate the very record a court will later examine.

How we help

We review the trust, the deeds and the surrounding documents, explain the available paths and, when a petition is warranted, prepare and present it through the court hearing and the recording of the order. Meetings are available by Zoom or at our San Jose and San Francisco offices, in English, Cantonese or Mandarin. Learn more about trust confirmation petitions.