Probate Code Section 850 (“Section 850”) is a very useful tool for trust and estate attorneys. Section 850 provides for the determination of claims brought to determine ownership of real or personal property claimed by an estate, a ward or conservatee, or a trustee.
Section 850 is the successor to Probate Code Section 9860, with the purpose to “consolidate (a) decedent’s estates, trusts, conservatorship and guardianships into one section; and, to provide for claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject matter of the petition.” Senate Bill 669 was introduced by Senator Charles Poohigian and enacted in 2001.
Attorneys often use Section 850 to transfer property (real and/or personal) from entity to entity (a trust or an estate).
There are countless, creative ways to use this tool, including the following:
- A Heggestad Petition to return real property to a trust, when deeded out and never deeded back
- Judicial Foreclosure, when the non-judicial foreclosure remedy (trustee sale) is not available, such as partial-interest deeds of trust, lost notes, or otherwise
- To transfer property into an estate or new trust, when the vested Trust Declaration is missing to effectuate an action to borrow money or sell the property
- To transfer property into a trust, when the deed vesting is not the exact same vesting as the Trust Declaration vesting
- For use when property vested is in a minor or incapacitated person
Don’t forget Probate Code Section 859, which can be alleged in the 850 petition. Section 859 allows for damages equal to twice the value of the property recovered, if the property of an estate is taken, concealed or disposed in bad faith.