Lots of married couples think that if one spouse dies, the house will automatically go to the surviving spouse. Sadly, the reality of how titles work doesn’t always agree. A Heggstad Petition, a probate procedure that can, under some circumstances, transfer property into a trust without going through full probate, is one potential remedy in California.
Having the Home in One Name
It’s not uncommon for married couples to think that the surviving spouse automatically owns the home when the other spouse dies. Unfortunately, that’s not always how titles work. California property deeds often show only one spouse as the owner, even if their marriage lasted many years. These homes may have been purchased before marriage. They may have been refinanced by one spouse only, or the title was improperly transferred into a trust at some point.
When only the deceased spouse is listed on the deed, the house could be considered part of their probate estate.
What Is a Heggstad Petition?
Simply put, a Heggstad Petition is used to ask the probate court to determine that a certain asset is owned by a trust, despite the fact that the property title was never formally transferred into the trust before death.
Through a Heggstad Petition, the court is asked to set aside title problems to honor the deceased person’s intended distribution plan. However, it’s not automatic. The petitioner must prepare legal documents, supply court evidence, and sometimes appear in court to argue their case.
When a Heggstad Petition Might Be Appropriate
In fiscal year 2023-2024, there were 63,609 cases that were a result of probate filings. In Los Angeles County, there were 19,046 filings. The previous year, there were 18,111 filings in the county, some of which included Heggstad Petitions. A Heggstad Petition may be appropriate for you in the following circumstances:
- Your spouse created a valid trust.
- The trust documents specifically describe your house and declare it to be property of the trust.
- Your spouse intended to hold your home in the trust, but never formally transferred the home into the name of the trust.
- There are no other estate planning documents stating otherwise.
You may be able to have a probate lawyer file a Heggstad Petition with the probate court, asking the judge to declare that your house is owned by the trust. Instead of going through probate, the house can pass according to the terms of the trust.
This can help surviving spouses avoid probate and allow assets to be transferred to beneficiaries faster with less court oversight and administrative obstacles.
When a Heggstad Petition Cannot Be Used
It’s a common misconception that Heggstad Petitions are a magic solution to skip probate. They’re not. If any of these apply, a Heggstad Petition will likely be denied:
- There is no trust.
- The trust does not mention the property.
- The decedent intended to leave the property out of the trust.
- There is a disagreement as to ownership or intent.
- The decedent spouse did not have the legal authority to transfer the property to the trust.
The property will most likely need to go through probate in order to legally determine who owns it and how it should be transferred according to probate laws. If you try to force a Heggstad Petition when none is applicable, you may face lengthy delays, court sanctions, or a contested probate case.
Hire a Probate Lawyer
Surviving spouses commonly hire a probate lawyer to file a Heggstad Petition because they must deal with the court’s procedures, legal standards, and judges. Courts deny poorly drafted petitions, which means you may end up in probate anyway. Your probate attorney can do the following:
- Review the trust and make sure it is qualified
- Prepare your declaration and exhibits under penalty of perjury
- File the petition with the probate court
- Appear at any hearings if necessary
- Respond to any objections or court questions
When trusts and probate intersect in a Heggstad Petition, an attorney can help you navigate the complexities.
About My Probate Lawyer
At My Probate Lawyer, we are a California probate-focused law firm that exclusively practices probate law. We handle probate cases, petitions to the court, and estate disputes. As a probate-only law firm, we know the court processes and Heggstad Petition laws. We help families understand next steps and move forward with confidence.
FAQs
Q: What Happens If Your Spouse Dies and Your Name Isn’t on the House?
A: If your spouse dies and you are not on title to your house, the house does not automatically become yours. The house may be part of your spouse’s estate, and you may have to go through probate to legally own the house. Even in community property states such as California, you will usually need to go to court to get the title.
Q: Does the House Automatically Go to a Wife if the Husband Dies?
A: Marriage does not automatically transfer ownership of a house to a wife. Transferring of title would depend on how the home was titled, and if a trust, right of survivorship, or valid estate plan is in place. The need for probate arises when a husband holds sole ownership of the home without any transfer rights established.
Q: How Long Can a House Stay in a Deceased Person’s Name?
A: Legally, you do not have to rush to transfer a house after death. However, practical problems dealing with insurance, refinancing, or selling real estate in someone’s name after they pass away can create some legal challenges. Maintaining a clear title can also be problematic. For these reasons, expeditious legal action is advised.
Q: What Happens to a Jointly Owned Property if One Owner Dies?
A: The result varies depending on how they owned the property. If they owned the property with survivorship language, then usually the surviving owner avoids probate and automatically owns the entire property. If they owned the property as tenants in common, then the deceased owner’s interest transfers to his estate, and probate may be necessary.
Contact My Probate Lawyer
At My Probate Lawyer, we can assist you in your probate needs, including filing a Heggstad Petition. Contact us today for more information.
