Administering a decedent’s probate or trust estate can involve unforeseen challenges.  Let us consider two probate scenarios where title to real property that belonged to the decedent was nonetheless titled outside of the decedent’s name and presented a challenge as to how to title the real property into the estate.  Also, let us consider a trust administration scenario where title was left out of the trust.

Consider a probate where the decedent, years prior to his death, was supposed to receive title from his then wife to all real property belonging to them as joint tenants as part of their divorce agreement.  The wife signed an interspousal deed to real property in Lake county that she believed transferred all the property to her husband.  Years later, during the probate, she learned that the mobile home on the real property and the adjoining 5 acres parcel were not included on the interspousal deed.

Here a possible solution is to petition the court, under section 850 of the Probate Code, for an order to reform the deed to include the adjoining 5 acres.  Reformation is an allowed equitable (fairness) approach to the problem that applies when there is a written agreement that does not properly express the prior mutual agreement between the parties.  In this case, the both spouses agreed that all real properties would go to the husband, but the interspousal deed itself excluded the adjoining five acres and the mobile home.  With the surviving ex spouse’s written declaration it made sense to file an 850 petition to reform the old interspousal deed to include the missing assets.

Next, consider a probate where the decedent co-owned a lot with two other deceased owners of record.  The probate estate could not sell the property without either unifying all ownership in the probate estate itself or without the other deceased co-owner’s heirs getting on title to the real property and participating in the sale as co-owners.  Fortunately, the successors in interest to the other deceased owners were agreeable to assign their inheritance rights to the personal representative of the probate estate.  With the assignments and declaration by surviving heirs confirming that neither deceased co owner’s estate was probated it becomes possible to use an 850 petition by the personal representative for an order that the property belongs to the probate estate based on the assignments and the circumstances.

As illustrated, section 850 of the Probate Code provides a useful procedural remedy for a personal representative of a decedent’s estate to pursue claims to assets that are either possessed or titled in the name of someone else.  Without the cooperation of that “someone else” or the successors in interest, the section 850 petition will likely result in controversy and possibly even litigation.  With the cooperation, however, a section 850 petition can provide a useful remedy to solve knotty problems.

Lastly, consider a decedent who died with a trust while owning real property outside the trust.  If there is a good argument that the decedent intended the property to have been transferred to the trust but failed to do so, then an 850 petition pursuant to the case of Estate of Heggstad, 16 Cal. App. 4th, 943 (1993) case may be the solution.  For example, if the decedent took title out of the trust as part of a refinancing then there would be a clear argument that the failure to retitle the house back into the trust was unintentional.

          The foregoing is a brief discussion of a much wider and more complex subject.  It is not legal advice and does not substitute for consultation with an attorney before proceeding. 

Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at and 707-263-3235.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”