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Most homeowners understand that their heirs will not have to deal with the California probate process if their homes are placed in a living trust. One of the main reasons why most homeowners create a living trust is to avoid probate because the probate process is costly and time consuming. When a living trust is created, normally the probate attorney will draft a trust transfer grant deed to transfer the house into the living trust (making the living trust the owner of the house). When the creator of the living trust dies then the children will have the option of selling the house without having to go through the probate process.
However, after creating the living trust, many times, the creators of the trust decide to refinance their home to get a lower interest rate on their mortgages. During the refinancing process, the lenders will require that the title to the home be transferred back into the individual names because the lender wants to legally bind the actual person who is the owner of the house. After the refinancing process is completed, the owner is allowed to transfer title of the home back into the living trust. Unfortunately, after the refinancing is done, the trust creator often forgets to transfer ownership of house back into the trust. Then, when the heirs (children) want to sell the house, the question arises as to whether a probate is necessary since the home was in the living trust before the refinance, but the home is now outside the trust.
The California Court of Appeals has decided the answer in a famous case: The Estate of Heggstad. No probate is needed because California courts now allow an alternate and cheaper court procedure known as the “Heggstad Petition”
In 1989, Mr. Heggstad created a revocable living trust and listed all of his real estate in Schedule A of his trust documents. The important language of his trust shows that he intended for all of his property to be part of the trust, as documented in Schedule A of the trust. Mr. Heggstad died about a year later and as the heirs were fighting over the properties, they discovered that a certain piece of real property was not titled in the name of Mr. Heggstad’s trust. The house was mentioned in the trust documents but had not been legally transferred into the trust. The heirs took the case to the California Court of Appeals and the court found that it was sufficient that Mr. Heggstad listed the property in his original trust documents and allowed the heirs to avoid probate on that piece of real property even though a grant deed was never executed transferring the property into the trust. This famous 1993 case stands for the proposition that as long as the trust shows specific written intent that it was the trustor’s wish that the home be part of the trust’s assets, then the court will validate that the home as part of the trust assets and the successor trustee can sell the house without going through the probate process.
This example of refinancing and countless other situations where the trust creators inadvertently left the house out of the trust happened so frequently that the problem was finally addressed by the California lawmakers in Probate Code Section 850. This California Probate Code Section 850 allows the transfer of real property into a revocable trust after the death of the trust creator where title to such real property was not properly titled in the name of the trust before a person’s death.
The Heggstad Petition is a very powerful tool to avoid probate. But do not make the mistake of thinking that it is not necessary or imperative to change the title vesting to the name of the living trust. Having to use the Heggstad Petition will delay the selling of the house because it requires a court hearing, not to mention the attorney fees that could have been easily avoided by simply remembering to change the title of the home back into the living trust after the refinancing is completed.
the information provided is provided by Paul Horn Attorney at Law