In order to understand the purpose of a Heggstad petition, you have to learn about the value of a revocable living trust. This type of trust is misunderstood by some, but it is actually the ideal estate plan centerpiece for many people that are under the impression that a will is the right choice.
You most widely held myth about trusts is the idea that you lose control of assets that you convey into any type of trust. This is not the case, because there are revocable and irrevocable trusts.
If you establish a revocable living trust, you will be the trustee during your lifetime. This means that you will be the sole controller of assets that you transfer into the trust. You can do anything you want to do with assets that are titled to the trust.
As the name would indicate, if you want to revoke the trust entirely and reassume direct ownership of the property, you are free to do so.
Living Trust Administration
The whole point of the trust is to serve as an estate planning vehicle, so you have to account for the events that will take place after your passing. When you are drawing up the trust declaration, you name a successor trustee to assume the role after your passing.
A significant percentage of elders become unable to handle their own affairs due to cognitive impairment, and there are other causes of incapacity. To account for this possibility, you can empower the successor trustee to administer the trust in the event of your incapacity.
Your heirs would be the beneficiaries of the revocable living trust. After your death, the trustee would distribute assets to the beneficiaries in a manner that you set forth when you create the trust.
You do not have to provide lump sum distributions all at once if you are not comfortable with this arrangement.
A spendthrift clause can be included, and the trust would become irrevocable after your passing. The trustee could be instructed to provide limited distributions on an incremental basis to prolong the viability of the trust.
These distributions would not be subject to the process of probate. On the other hand, without a trust, a will would be admitted to probate, which is a time-consuming, public, and expensive legal process. In addition to the ability to provide spendthrift protections, this is the other major benefit.
Now that we have set the stage appropriately, we can look at the Heggstad petition. This is alternately referred to as a California Probate Code section 850 petition, because this is the legal foundation of the petition.
Sometimes a person with a living trust will pass away while they are still in direct personal possession of property that was not conveyed into the trust. That means real property or a significant account was still titled in their name at the time of their death. This transfer would theoretically be subject to the full probate process.
However, in California, an estate planning attorney can file a Heggstad petition on behalf of a client. It would contend that the decedent intended to convey the property in question into the trust, and their actual intent should be carried out.
The court will approve the request if sufficient evidence is presented, and a pour over will can bolster the contention. This is a will that directs property that is in the personal possession of the testator into the trust after their death.
If you have a living trust, you should definitely include a pour over will to account for property that may be in your personal possession at the time of your passing.
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