Does the Successor Trustee ever need to go to probate court? Yes, sometimes. Occasionally a decedent will have created a Trust but for various reasons not all of their assets have been put into their trust (this is called “funding”). Without proper funding, the assets not in the trust may need to be probated (e.g., real estate). In such cases, a “Heggstad Petition” can be filed with the court, requesting the court to permit the property to be put into the trust instead of having to probate that asset.
How do I keep my Trust and my Successor Trustee out of court? To avoid this scenario, it is very important that you fund the trust and regularly update your trust when you acquire new assets or when big changes occur in your life. A Trust is a living document that cannot be drafted once and forgotten. In the very least, you should review your document every three years. If a major event, such as the birth a new baby, an adoption, a divorce, a new marriage, or the death of a guardian, trustee or a beneficiary occurs, you should review your Trust shortly after the event. When you purchase anything of significant value (or refinance your house), you need to fund it into the name of the Trust at the time of the transaction.