Avoiding Probate

[Frances Regalado]

Good Evening,

Scenario In California:

You're named Executor of a Living Trust with a piece of real estate, which you find was refinanced multiple times and not put back into the name of the Trust. 

If you petition the court (in California) to get the real estate back into the Trust to avoid Probate, how much work does this involve? How likely is it that the Court will allow it back into Trust? What type of fee would you expect a lawyer to charge for such action?

I'm asking, as I'd like to find out if an estimate recently rec'd is fair? Property was only held in deceased name. I'll call another lawyer to get a 2nd quote, but if anyone has any idea about a reasonable fee, I would appreciate hearing about it.

Thanks,

[Ken Kossoff]

What you hope to be able to do is a "Heggstad Petition," named after a case.  You try to convince the court that the decedent intended the property to be owned by the trust even though title is not in the name of the trust.  Whether you can do so depends on (among other things) the language of the trust and whether the property was listed in a Schedule "A"  or similar attachment evidencing an intent to transfer real property into the trust.  The court may or may not care that the property was previously owned by the trust.  The scope of work is the drafting of a petition and possibly a supplement to that petition, attending at least one hearing, drafting (hopefully) an order transferring the property into the trust, and then ensuring that a certified copy of the order is recorded.  I would expect most attorneys who are experienced in the field to charge at least $3500, plus the filing fee ($435, a bit more in some counties which charge for court reporters); others will charge at least $5,000.  You might be able to find a young attorney who does not know what he is doing to do it for less, but that can be risky because if you blow it, then you've spent that money but still need a full blown probate proceeding.  Also, if the documentation does not support a Heggstad petition, you may want an experienced attorney to tell you that before you try it.  Good luck.