These things happen: a loved one dies. Their estate is unsecured. Relatives, neighbors and friends gather to honor the decedent. Somewhere there is conflict - maybe not open or glaring - but conflict nonetheless. The fight might be one against many, or a few against a few. Conflict may be particularly rife among stepchildren and stepparents. With the challenge you're facing, you're going to need a probate litigation attorney.
Let's continue our scenario: There is someone is in charge, or they appear to be in charge, of the estate. Important documents are secured, and estate or probate lawyer is hired. Amidst all of this mix of grief, uncertainty and anxiety, estate assets disappear - furniture, coins, silver, money, cars and precious family heirlooms. It is one thing if assets are distributed according to the decedent's wishes, but it's quite another if an estate's valuables are removed without accountability or transparency - or in many cases, just outright stolen.
It is within this tense environment that a proficient estate lawyer may share the wisdom of experience and gauge whether missing items rise to the level of civil litigation or even criminal theft.
Not all contentious estate disputes have to end up in court. There have been plenty of times when we've worked with opposing attorneys to create an orderly process to recover what has been taken, and to coordinate an appropriate and legitimate plan for distribution of estate assets. As much as an amiable, less contentious approach is desired, there are times when the power of the Court must be called upon to recover estate assets. In these cases, the filing of a Probate Code Section 850 Petition - a legal filing also known in California as a Heggstad Petition, is necessary.
The personal representative or any interested person may petition the court for an order in any of the following cases: "(D) Where the decedent died having a claim to real or personal property, title to or possession of which is held by another." (Probate Code, § 850(a)(2)(D).)
"Except as provided in Sections 853 and 854, if the court is satisfied that a conveyance, transfer, or other order should be made, the court shall make an order authorizing and directing the personal representative or other fiduciary, or the person having title to or possession of the property, to execute a conveyance or transfer to the person entitled thereto, or granting other appropriate relief." (Probate Code, § 856.)
"An interested person may request time for filing a response to the petition for discovery proceedings, or for other preparation for the hearing, and the court shall grant a continuance for a reasonable time for any of these purposes." (Probate Code, § 852.) "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformance with the rules of practice in civil actions." (Probate Code, § 1000.)
Here is a sample document of a Probate Code Section 850 Petition (also known as a Heggstad Petition):
Unless otherwise ordered by the Court, once an 850 petition is contested, the matter will proceed through three court hearings:
1. Trial Setting Conference (TSC);
2. Mandatory Settlement Conference (MSC); and
During the litigation of the Section 850 or Heggstad petition, the parties may engage in discovery by deposition, interrogatories, demand for production of documents, etc. It is then the prerogative of the personal representative to utilize the procedures set forth in California's civil discovery statutes to obtain the information appropriate to the dispute.
California's County Superior Courts often have local rules that address particular local requirements in Probate Code § 850 matters. Hackard Law attorneys regularly consult these rules to conform our pleadings and case planning to local requirements. Local rules for Probate matters that we regularly utilize include:
- Alameda County
- Contra Costa County
- El Dorado County
- Los Angeles County
- Marin County
- Monterey County
- Placer County
- Sacramento County
- San Diego
- San Francisco County
- San Mateo County
- Santa Clara County
- Solano County
- Sonoma County
- Stanislaus County
Hackard Law regularly represents clients in Heggstad/ Probate Code § 850 matters throughout California. Led by veteran attorney and California Super Lawyer Michael Hackard, the Hackard Law litigation team is committed to excellence in the representation of clients in trust, estate and probate matters. We're proud to serve clients and protect their interests - contact us today so we can help you.
Find us at:
10630 Mather Blvd.
Mather, CA 95655