To file a Heggstad petition in California, you draft a petition under Probate Code § 850 on numbered pleading paper, attach the trust document and written evidence showing the settlor intended the asset to be held in trust, file it in the Superior Court of the county where the property sits along with the $435 filing fee, and serve the required parties with form DE-115 at least 30 days before the hearing. A granted petition confirms the asset as trust property and keeps it out of full probate.1California Legislative Information. California Code PROB 850 – Conveyance or Transfer of Property Claimed to Belong to Decedent or Other Person
When This Petition Is the Right Tool
The rule the petition relies on is simple. If the settlor put something in writing showing they meant a specific asset to be held in the trust, the court can honor that intent after death, even if a deed was never recorded or an account never retitled. In Estate of Heggstad, the Court of Appeal held that a settlor’s written declaration that they hold property in trust is enough, on its own, to create the trust interest.2Justia. Estate of Heggstad (1993)
What courts look for is usually a Schedule A or similar exhibit attached to the trust that lists the property by address, parcel number, or account number. A trust provision that describes the property in its own text works too, as does a pour-over will referencing the trust. A purely verbal statement does not. If the settlor told relatives they wanted the house in the trust but never wrote it down, the petition will almost certainly fail and the asset goes to formal probate.
Under Probate Code § 850, the trustee or any interested person may file when the trustee has a claim to property that someone else holds title to or possesses.
Check Whether a Small-Estate Procedure Fits First
Before drafting anything, see whether the asset qualifies for something simpler. For personal property such as bank accounts, vehicles, and investments, California allows a small estate affidavit when the total estate value is $208,850 or less for anyone who died on or after April 1, 2025. Real property of small value has its own separate affidavit process using Judicial Council form DE-305. A Heggstad petition is most useful when real estate is involved and the value clears those thresholds, or when the property clearly belongs in the trust rather than passing under a probate distribution.3California Courts. Small Estate Affidavit to Transfer Personal Property
Documents and Information to Gather
The petition lives or dies on what you attach. Before drafting, collect:
- The trust agreement with every amendment, schedule, exhibit, and attachment. A certified copy is best. The schedule naming the property is the single most important piece of evidence.
- The most recent vesting deed for any real property, ordered from the County Recorder in the county where the property sits. This shows current title and gives you the legal description.
- Recent statements for any non-real-estate assets, showing account numbers and institution names.
- A certified death certificate, from the county vital records office or the California Department of Public Health.
- Full names and current mailing addresses for every trust beneficiary and legal heir. The notice rules are strict and the court cannot shorten them.
For vehicles, pull the current registration or certificate of title from DMV records. Every document should describe the property the same way. Inconsistencies between the deed, the trust schedule, and the petition give judges reasons to ask questions or deny the request.
Drafting the Petition
There is no Judicial Council form for a Heggstad petition. You draft it yourself on pleading paper, the numbered 28-line format California courts require for custom filings. The California Courts website offers a downloadable pleading paper template.4California Courts. Find and Fill Out Court Forms
The caption at the top gives the court name (Superior Court of California, County of wherever the property sits), the case number if one exists, and the party names. The body of the petition should include:
- Your name, your role (successor trustee, beneficiary, or other interested person), and the legal name and execution date of the trust.
- A statement of facts connecting the trust document’s language to the specific property. Quote the relevant trust provisions and schedule entries. Describe the property using the exact legal description from the vesting deed.
- An explanation of the gap. Perhaps a deed was prepared but never recorded, the settlor became incapacitated before signing, or the step was simply overlooked.
- The request. Ask the court to confirm the identified property is trust property and to authorize the trustee to manage, transfer, or distribute it under the trust terms.
Section 850 requires only that “the petition shall set forth facts upon which the claim is based.” In practice, judges want the written evidence of intent laid out clearly. Attach the trust agreement with its schedules, the vesting deed, the death certificate, and any other supporting documents as labeled exhibits.
Use Form DE-115 for Notice, Not DE-120
This is where many self-represented petitioners get tripped up. Form DE-120 (Notice of Hearing—Decedent’s Estate or Trust) is the wrong form. Its own instructions say: “Do not use this form to give notice of a petition to determine a claim to property (see Prob. Code, § 851, and use form DE-115/GC-015).”5Judicial Council of California. Notice of Hearing – Decedent’s Estate or Trust (DE-120)
The correct form is DE-115/GC-015, “Notice of Hearing on Petition to Determine Claim to Property.” It is designed for petitions filed under Probate Code § 851, which governs notice for all § 850 petitions.6California Courts. Notice of Hearing on Petition to Determine Claim to Property (DE-115)
Fill in the court name, your name as petitioner, and a description of the property. Leave the hearing date, time, and department blank. The clerk assigns those at filing.7Judicial Council of California. Notice of Hearing on Petition to Determine Claim to Property (DE-115)
Filing and the Filing Fee
File the petition, exhibits, and DE-115 at the probate clerk’s window in the Superior Court of the county where the property is located. The statewide filing fee for a petition under Probate Code § 850 is $435. Riverside, San Bernardino, and San Francisco charge slightly more because of courthouse construction surcharges.8Superior Court of California. Statewide Civil Fee Schedule
If you cannot afford the fee, apply for a fee waiver on Judicial Council form FW-001.
Serving Notice on a 30-Day Clock
Once the clerk assigns a hearing date, the notice timeline runs longer than many people expect. Probate Code § 851 requires at least 30 days’ notice before the hearing, and the statute states the court cannot shorten it.9California Legislative Information. California Code PROB 851
Notice comes in two tiers:
- Personal service. The personal representative, the trustee, and each person claiming an interest in or holding title to the property must be personally served with the petition and DE-115 at least 30 days before the hearing. A process server, or any adult who is not a party, physically hands over the documents.
- Mail notice. Everyone else entitled to notice, including trust beneficiaries, heirs, and devisees whose interest may be affected, receives notice by mail under Probate Code § 17203 for trust matters or § 1220 for estate matters, also at least 30 days out.
File a proof of service with the court after service is complete. Missing the 30-day window or leaving out a required party almost always leads to a continuance, pushing the hearing out by weeks or months.
The Hearing and the Court’s Order
At the hearing, the judge reviews the trust, the attached schedules, and any other evidence of intent. If no interested party has objected and the written evidence clearly ties the property to the trust, many judges grant the petition without argument. Uncontested Heggstad petitions often move through the regular probate calendar in minutes.
An objection changes things. If an heir or beneficiary contests the petition, the judge may set an evidentiary hearing where both sides present testimony and additional documentation. A contested petition can take months and may require an attorney.
When the court grants the petition, the judge signs an order directing transfer or confirming the property as a trust asset. Probate Code § 856 authorizes the court to order the person holding title to execute a conveyance to the person entitled to the property, or to grant other appropriate relief.10California Legislative Information. California Code PROB 856
For real property, take a certified copy of the order to the County Recorder and record it. Recording updates public title and effectively moves the property into the trust without full probate. For financial accounts, send a certified copy to the bank or brokerage, which will retitle the account or release funds to the trustee.
Common Reasons Petitions Are Denied
Judges deny Heggstad petitions when the written evidence of intent is thin or ambiguous. The recurring problems:
- No property listed in the trust schedules. A blank Schedule A, or one that says “all my assets” without identifying specific property, is often too vague for a court to confirm a particular house or account.
- Property description that does not match. The trust schedule lists “123 Main Street,” but the deed uses a lot and block number with no street address. Ambiguity here can sink the petition.
- No writing at all. Family testimony about what the settlor wanted is not enough. The court needs something in writing, whether a trust schedule, a letter to the drafting attorney, or an unsigned deed showing intent.
- Family disputes. When heirs disagree about what the settlor intended, a judge is less likely to grant the petition on the papers and may require a contested hearing or deny it outright, sending the asset to probate.
If the petition is denied, the asset typically goes through formal probate administration, the outcome the petition was meant to avoid. Getting the evidence right before filing is far cheaper than litigating a denial.
What You Save Compared to Full Probate
Full California probate triggers statutory fees for both the attorney and the personal representative, each calculated on the gross estate value under Probate Code § 10810. Because both parties receive those fees separately, the effective percentages double. A home appraised at $800,000 would generate roughly $19,000 in statutory fees, $9,500 to each side, before any extraordinary fees for complications. Full probate also takes 12 to 18 months on average.11California Legislative Information. California Code Probate Code 10810
A Heggstad petition costs the $435 filing fee plus any attorney fees. Attorneys who handle these on a flat fee typically charge $3,000 to $6,000, depending on complexity and whether the petition is contested. Uncontested petitions often move from filing to recorded order within 60 to 90 days.