I get phone calls with the above question, or some form of it, several times a month: My mother, father, grandparent had a trust. They passed away and we are trying to sell the house. We have a buyer and the sale was about to go through, but the title company is holding up the sale, saying the house is not in the trust. What can we do?

Most people do not know that simply creating a trust and including a statement in the trust that all of your property is part of the trust is not usually sufficient, especially when it comes to real estate where deeds and titles are very important. With real property, the person that creates the trust must then execute a deed, transferring title of the property into the new trust. Instead, many people simply leave their deed as is, and assume the language in their trust will be enough to allow their loved ones to handle the property when they are gone. Even worse, many phone calls I get are from people whose loved ones had attorneys who helped them create their trust and estate plan, and the attorney failed to create a transfer deed to make sure the property was in the trust. Any decent estate planning attorney would never allow their client to overlook this important step.

The good news is that there is a legal remedy for this very situation, and it is commonly called a "Heggstad petition," named after someone named Heggstad who had a similar situation. To be more precise, you could call it a Probate Code section 850 petition. Either way, this kind of petition allows someone, usually the new trustee or executor of the estate, to obtain a court order confirming that the property is part of the trust and subject to the control of the current trustee.  While it can be somewhat time consuming and tedious, the process is fairly straightforward -- but nowhere near as easy as it should have been had the property been properly put into the trust in the first place.

As an experienced estate planning attorney, if you come to me and ask me to create a trust, I will always make sure that you know how to properly fund your trust and put your home and other important assets into the trust. But if you are a loved one of someone who had a trust but did not know they needed to deed their home to the trust, then I can help you sort it out and make sure your loved one's wishes are fulfilled.

Ideally, nobody should ever need a Heggstad petition if they had a good lawyer when they drafted their estate plan. But if you find yourself needing one, call me and I will help.