Key Takeaways

• A section 850 petition asks the court to decide who owns property when there’s a dispute or uncertainty involving a trust or estate.
• A Heggstad petition is a common type — it confirms that property the settlor intended for the trust is part of the trust, even though it wasn’t formally retitled.
• Section 850 is also the vehicle to recover property wrongly taken from a trust or transferred away from it.
• A successful 850 petition can order someone to convey the property to the trust.
• When the taking was wrongful, section 850 connects to the double-damages remedy under section 859.

When Property Belongs to a Trust — But Isn’t There

Trusts only work if the property is actually in them. A common, costly problem: a person creates a living trust intending to put their assets into it, but never formally transfers some of it — the house deed still names them individually, an account was never retitled, a property bought later was never added. When they die, that “stray” asset isn’t technically in the trust, which can force it into probate or create a dispute about where it belongs.

A related problem is wrongful taking: someone takes property that belongs to the trust, or a settlor was induced to transfer property out of the trust improperly. In both situations, California provides a powerful tool to fix things — the section 850 petition — which lets the court determine who actually owns disputed property and order it conveyed to the right place. Two of its most important uses are the Heggstad petition (confirming intended-but-untransferred property into the trust) and the recovery of wrongfully taken trust property.

The Heggstad Petition

The Heggstad petition — named for the case that established the approach — addresses the “stray asset” problem. If a settlor clearly intended to include property in their trust and demonstrated that intent (often by listing the asset on the trust’s schedule of assets, or through other evidence), but never completed the formal transfer, a Heggstad petition asks the court to confirm that the property is part of the trust despite the missing paperwork.

The benefit is significant: instead of sending the overlooked asset through a full, expensive probate, a successful Heggstad petition can confirm it into the trust through a relatively streamlined proceeding — honoring what the settlor plainly intended. The key is evidence of intent. A property listed on the trust’s schedule of assets, or a clear written declaration that the settlor was holding it as trustee, can support the petition. Mere unexpressed intention is harder; the stronger the documentation that the settlor meant to include the asset, the stronger the petition.

Recovering Wrongfully Taken Property

Section 850 isn’t only for honest mistakes. It’s also the vehicle to recover property that was wrongly taken from a trust — or wrongly taken from a settlor that should have gone to the trust. If a trustee, a family member, a caregiver, or anyone else took, concealed, or improperly transferred property belonging to the trust, a section 850 petition can ask the court to determine that the property belongs to the trust and to order its return.

This is where section 850 becomes a recovery tool in contested cases. Suppose a caregiver got a vulnerable settlor to deed them the house that should have passed through the trust, or a trustee diverted trust property to themselves. A section 850 petition is the mechanism to bring that property back — and, importantly, it’s the gateway to the enhanced double-damages remedy when the taking was wrongful, discussed below.

Property that should be in a trust — but was left out or taken? A section 850 petition can confirm it in or bring it back. Bay Legal handles these petitions throughout California. For guidance on your specific situation, call (650) 668-8000 or schedule a consultation at baylegal.com/contact.

What the Court Can Order

A section 850 petition gives the probate court authority to resolve the ownership question and grant relief, including:

• Confirming that property is part of the trust (the Heggstad situation).
• Determining ownership where it’s genuinely disputed between the trust and someone else.
• Ordering a person to convey or transfer the property to the trust.
• Ordering the return of property wrongfully taken, concealed, or disposed of.

The court’s order resolves the title question with binding effect, so the trustee can administer the property as part of the trust. For a trust that’s been deprived of property — whether by oversight or by wrongdoing — section 850 is the direct path to getting it where it belongs.

The Connection to Double Damages

One of the most important features of section 850 in contested cases: it’s the vehicle that unlocks the double-damages remedy under section 859. When someone has wrongfully taken, concealed, or disposed of trust property in bad faith, or taken it through undue influence, the section 850 petition is how the claim is brought — and section 859 can then require the wrongdoer to return the property and pay an additional amount equal to its value, effectively double damages, plus potentially attorney fees.

This pairing matters a great deal in elder-financial-abuse and trustee-misconduct cases. Recovering only what was taken leaves a wrongdoer no worse off for trying; the double-damages enhancement changes the incentive and gives the trust a meaningful recovery. But it runs through section 850 — section 859 isn’t a standalone claim, but an enhanced remedy attached to the 850 recovery. Our guide on section 859 double damages covers that remedy in depth.

When trust property was taken in bad faith, the recovery can be doubled. Bay Legal can help you bring the section 850 petition and pursue the full remedy. For guidance on your specific situation, call (650) 668-8000 or schedule a consultation at baylegal.com/contact.

A Note on Both Sides

Section 850 petitions aren’t only brought by trusts — they’re also defended. Someone who holds property the trust claims may have a legitimate ownership interest, a valid gift, or a genuine dispute about the settlor’s intent. Being named in an 850 petition doesn’t mean wrongdoing; ownership questions can be honestly contested. A person facing an 850 petition — including a trustee or beneficiary accused of holding property that belongs elsewhere — is entitled to present their side, and the double-damages exposure under section 859 makes a careful defense especially important where bad faith is alleged. Whether you’re seeking to recover property for a trust or defending a claim to property, the stakes warrant real attention.

How This Fits Together

A section 850 petition recovers or confirms property for a trust, is the vehicle for the section 859 double-damages remedy, and often arises alongside breach of fiduciary duty, undue influence, and financial elder abuse claims. It’s brought through the probate court like other section 17200 matters. 

Frequently Asked Questions

What is a section 850 petition in California?

It’s a petition asking the probate court to determine ownership of property involving a trust or estate and to order it conveyed to the right party. It’s used both to confirm intended property into a trust and to recover property wrongly taken from one.

What is a Heggstad petition?

A type of section 850 petition that confirms property the settlor intended for the trust is part of the trust, even though it was never formally retitled — avoiding a full probate of the overlooked asset. It depends on evidence of the settlor’s intent.

Can a section 850 petition recover property taken from a trust?

Yes. If property belonging to a trust was wrongly taken, concealed, or improperly transferred, a section 850 petition can ask the court to determine it belongs to the trust and order its return — and can unlock the double-damages remedy under section 859.

How does section 850 relate to section 859 double damages?

Section 850 is the vehicle; section 859 is the enhanced remedy. When trust property was taken in bad faith or through undue influence, the 850 petition brings the claim, and section 859 can require return of the property plus an equal additional amount — effectively double damages.

Can a section 850 petition be defended?

Yes. Someone holding property the trust claims may have a legitimate ownership interest or a genuine dispute about the settlor’s intent. Being named doesn’t mean wrongdoing, and a careful defense matters — especially given the double-damages exposure where bad faith is alleged.