My husband's father passed away in 2014. Before he died he created a Trust. My husband is the successor Trustee. The Schedule of Trust Asset...

Question

My husband's father passed away in 2014. Before he died he created a Trust. My husband is the successor Trustee. The Schedule of Trust Assets list his fathers' bank account and two real estate properties (two houses, grant deeds dated 1999 and 2007). The bank account is in his father's name as an individual and not as a Trustee of the Trust. The two properties, grant deeds are, also, in his name as an individual and not as a Trustee of the Trust. Can his son, my husband, transfer the bank account and two property grant deeds to the Trust? The father resided in Oakland, Alameda County CA and his bank account and two real estate properties are, also, in Oakland, Alameda County, CA.

Answer

Sounds like you need to do a California Probate Code 850 "Heggstad petition." I have an article on it on my website. You can get to it directly at heggstadpetition.com

Your husband can't do the deeds. A court order is required.

Answer

Mr. Palley is correct. Practicing in Alameda County myself, I can say that you should hire a probate attorney for assistance. The court is very difficult to work in.

Answer

Here's the scoop: Since the properties and the account are not in the trust, they would normally be subject to probate in the courts. However, there's an appellate court decision in "Estate of Heggstad" that stands for the proposition that if the trust has a schedule of trust assets, and the language of the trust assigns the assets identified on the schedule to the trust, then those assets are really trust property even though your father didn't retitle the bank account and sign and record deeds conveying the two real properties to the trust. The idea is that the very language of the trust acts as an assignment of those assets to the trust. The bank can't rely on this, nor can title companies, but you can file a Heggstad petition with the court and get an order declaring these assets to be in the trust.

The advantage of the Heggstad petition is that there's only one court hearing, with 30 days notice to beneficiaries and the persons who would inherit if there was no will or trust, while a probate will take a minimum of 9-15 months. Also, Heggstad petitions are much less expensive than probate fees, which are set by state law and are very generous to attorneys.