Having a Trust Does Not Automatically Mean You Avoid Probate in California

One of the biggest misconceptions I see is the belief that simply having a trust automatically means your family will avoid probate.

Unfortunately, that is not always true.

I see this situation often. A family comes to me after a loved one passes away and tells me, “Mom had a trust, so we should be okay.” Then we start reviewing the assets and estate planning documents more carefully.

For example, maybe the parent had a trust and owned a home. But when I review the deed to the property, I discover the home was never actually transferred into the trust. Instead, title is still held in the parent’s individual name.

At that point, we have to carefully analyze the trust, deed, and other estate planning documents to determine whether probate can still be avoided.

In some cases, the facts may support filing what is commonly called a Heggstad Petition. This is a court petition that may allow certain assets to be confirmed into the trust after death, even if they were never formally transferred during the person’s lifetime.

However, a Heggstad Petition is not guaranteed. Whether it is available depends heavily on the specific facts, the trust language, the supporting documents, and how the assets were handled.

Sometimes the facts support it. Sometimes they do not.

In situations where probate cannot be avoided, the family may still need to go through a full California probate proceeding, even though the person had a trust.

This is one reason why proper trust funding is so important.

Creating a trust is only part of the process. Assets also need to be properly coordinated with the estate plan. That often includes transferring real estate into the trust, updating beneficiary designations where appropriate, and making sure assets are titled correctly.

Estate planning is not just about signing documents. It is also about making sure the plan is properly implemented.

If you have a trust, it may be worth reviewing how your assets are titled to make sure your plan will work the way you intend.

If you recently lost a loved one and are unsure whether probate is required, or if you want to review whether your own trust is properly funded, our office would be happy to help. We offer complimentary initial consultations for probate and estate planning matters.