The Law Office of Gregory I Becker

Wills, Trusts & Probate Law

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What does an Executrix do when she discovers property intended for a trust is left out in error?

The Executrix should consider filing a Heggstad Petition in lieu of a formal probate. The Petition seeks to return assets that are outside of a Trust at death back into the trust through a Post-Mortem Order. Estate of Heggstad (1993) 16 Cal.App.4th 94.

In 1993, the Court relied on a specific reference of real property on a property schedule that was part of the trust. The listing of the property was sufficient to prove intent and overcome the failure to transfer the property to the trust via deed.

Over time California courts have adopted a "...flexible and pragmatic..." approach to similar situations that offer less specificity.
For instance, in 2011, the law expanded to apply to General Assignments of personal property. Here, stock that was not specifically listed or titled in the trust was ordered to be an asset of the trust. Kucker v. Kucker (2011) 192 Cal.App.4th 90.

More recently, the Court stretched the application of a General Assignment to real property. Now even if real property is not listed or titled in the trust, it can be ordered to be an asset of the trust. Ukkestad v. RBS (2015) Cal.App.4th 156.

For legal scholars out there a General Assignment of real estate can be descriptive enough to comply with statute of frauds.

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