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Probate and the Heggstad Petition

In many past blogs, we have emphasized the importance of transferring all assets that are trust assets into the name of your revocable living trust. This is important because if you pass away and there are assets in your estate that were not transferred into your trust, those assets will be subject to probate. Probate can be long and costly and avoiding probate was probably one of the reasons you created a trust.

When you create a trust with Scott C. Soady, A Professional Corporation, LLP, the assets that are being transferred into your trust will be listed on your Schedule of Assets. This would include any real property, bank accounts, mutual funds, stocks, bonds, business interests, and personal property. After your trust is in place, you may acquire additional assets, open a new bank account, buy a second home or a different home, or purchase other assets that should be transferred into the trust. All of these “new” assets should be titled in the name of your trust and your Schedule of Assets updated.

If an asset is not properly transferred into the name of your trust, there potentially may be a way to avoid probate proceedings. There is an action called a Heggstad petition, named after a 1993 case entitled Estate of Heggstad. With this petition, it may be possible for the Court to determine that an asset not actually titled in the trust at the time of death is in fact a trust asset. The court looks to the Schedule of Assets to see if the asset was listed and if so, infers there was an intent to transfer it. If the court grants the petition, the court orders that the asset is a trust asset. The Heggstad petition thus avoids the full probate of the estate.

For assistance with your Schedule of Assets or to create a trust or amend a trust, contact us for a complimentary consultation. We also handle probate, trust administration, guardianships, conservatorships, and estate and trust litigation.

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