Why You Might Need to File Probate When the Decedent Had a Trust

Scenario 1: The Trust Was Never Funded

A trust only controls assets that are legally titled in the name of the trust. If the decedent created a beautiful estate plan but never transferred their home or bank accounts into the trust, the trust is essentially empty.

Example:
John signed a trust in 2018 but never recorded a new deed for his house. At the time of death, the house is still titled in his name individually.
Result: Probate is required to transfer the home into the trust or to the rightful heirs.

Scenario 2: Assets Were Removed from the Trust (on Purpose or by Mistake)

Sometimes, property that was once in the trust gets refinanced, retitled, or sold—and never properly returned to the trust.

Example:
Susan refinanced her home and the bank required it be pulled out of her trust for the transaction. The loan closed, but the title was never transferred back.
Result: The house is now outside the trust at the time of death, so probate may be needed to transfer it.

Scenario 3: The Decedent Acquired New Property After Creating the Trust

People often buy new real estate or open accounts after setting up a trust—and forget to title them properly.

Example:
Leo created a trust in 2010. In 2022, he bought a vacation cabin in Lake Tahoe, titled in his own name. He passed away in 2024.
Result: Probate is required to transfer the cabin unless a pour-over will or other tool is in place.

Scenario 4: The Pour-Over Will Triggers Probate

Many estate plans include a pour-over will that “catches” any assets not titled in the trust and directs them to be added posthumously. But if those assets exceed the probate threshold ($184,500+), it still requires court administration.

Scenario 5: Legal Disputes or Trust Challenges

Even with a valid trust, disputes may force probate court involvement. Common examples include:

• Allegations of undue influence or lack of capacity
• Heirs claiming the trust is invalid or forged
• Conflicts between co-trustees or beneficiaries
• Creditor claims not satisfied during trust administration

Scenario 6: Using a Heggstad Petition — When It Works (and When It Doesn’t)

If real property or other assets were meant to be part of the trust but weren’t formally transferred, a Heggstad Petition (based on Estate of Heggstad, 1993) may help.

This legal request asks the court to confirm the asset as part of the trust without requiring full probate—if the trust identifies the asset or shows clear intent.

Example:
Alan listed “all real estate owned by me” in his trust schedule but never recorded a deed for his rental. His trustee filed a Heggstad Petition with a CMA and trust schedule. The court approved it, allowing the home to transfer without probate.

Heggstad Petition Approval is Not Guaranteed

The court may deny the request if:

• The trust doesn’t describe the asset clearly
• There’s no supporting documentation
• The property was acquired after the trust was created
• There are objections from other parties

Bottom line: A Heggstad Petition is a great tool—but don’t count on it unless you’re confident the legal criteria are met.

Real-Life Example (a Fictionalized Case Study)

Maria’s father had a trust, but he opened a new investment account shortly before his death and forgot to title it in the trust’s name. The account held $350,000. Even though the rest of his estate was in the trust, Maria had to file probate to transfer that one account.

Lesson: One missed asset can trigger a full probate case—even if a trust exists.

Checklist to Avoid Probate Complications With a Trust

If you’re managing an estate—or helping someone plan theirs—here’s how to avoid probate complications:

Think You Need to File Probate When the Decedent Had a Trust?

A living trust is one of the best estate planning tools available—but it’s not foolproof. Incomplete funding, missing paperwork, and new assets can all cause you to file probate when the decedent had a trust.

The good news? There are legal solutions—from Heggstad Petitions to simplified court filings—that can help. And with the right guidance, you can get through the process efficiently and with confidence.

Contact Probate & More to discuss how we might be able to help you with the legal documents you will need to take the right path forward.