Heggstedd Petition or Probate?

What is the name of your state (only U.S. law)? California, but complicated by property in North Carolina

Hello,

My mother passed away a few weeks ago and I am working on settling her estate. She set up a trust a few months ago, but I found out this week that she never put anything into it, including a house she owns in North Carolina. My brother and I have been able to access her bank accounts and 401K due to being named beneficiaries upon death so the house is the only real concern.

I spoke to the lawyer that set up the trust and he said we have two options. 1) file a Heggstead (spelling wrong, sorry) Petition saying that she intended to put the house in the trust. He said he would verify that she orally said it and I do have the house listed in Schedule A of the trust docs.

2) File probate in North Carolina.

My lawyer said he isn't familiar with N.C. probate law so he couldn't say which option would be a better idea.

My question is: Which option is likely better for me to pursue? ( the criteria I'm looking at are amount of time each process will take, how expensive each will be, and how much travel will be required to North Carolina)

I'd appreciate any guidance. I'm really at a loss here.

Thank you.

I see no downside, beyond attorney fees, to filing the petition, so you might as well try. I don't think your fact situation will qualify, but I don't see the downside.

hi tranquility,

from the small amount of reading that i did, it said that a title insurance company will not issue a title insurance policy from individual to trustee without an exclusion order from a probate court.

does an exlusion order result from a successful heggstedd petition ?

A successful petition will retitle the property to the trust. I have negotiated on many properties as trustee after a successful petition and title insurance has never been an issue, so I can't answer your question as I have no idea.

You might consult quickly with North Carolina counsel. If the realty is well described on Schedule A, recording the trust in North Carolina might do the trick.

Heggstad (16 Cal App 4th 943) actually decided that a declaration in the trust that the property listed on Schedule A is trust property is sufficient to transfer it to the trustee. That doesn't appear to be the issue here. Rather, it is what a North Carolina title company or title lawyer will think of this transfer of title.