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The Goal: To get a court order declaring the "gift" invalid and forcing the person in possession to return the property to the estate for distribution to the lawful heirs.The Statute: California Probate Code § 850(a)(2).Who can file: The Personal Representative (Executor/Administrator) of the estate, or any "interested person" (the lawful taker/heir).
Lack of Delivery: A gift is not legal until it is "delivered." If the decedent said "you can have my car" but kept the keys and title in their drawer until they died, the gift was never completed.Lack of Capacity: The decedent was not mentally competent to understand they were giving away their property at the time of the alleged gift.Undue Influence: The person in possession used their relationship or the decedent’s weakness to "persuade" them into giving the gift.Fraud: The person lied to the decedent to obtain the property.
The return of the property.Twice the value of the property as a penalty (Double Damages).Your attorney’s fees and costs.
Procedure to Get a Decedent's Property that Another Person Claims to have a Right to [Heggstad Petition]
When a family member holds property and claims it was an inter vivos gift (a gift made during the giver's life), but the lawful heirs believe the property belongs to the estate, this creates a "competing claim of title."
In California, the primary tool for resolving this is a Probate Code § 850 Petition.
1. The Procedure: The § 850 Petition
A Section 850 Petition (often called a "Heggstad Petition" in other contexts) allows an interested person to ask the court to determine who actually owns property.
2. Grounds for Challenging the "Gift"
Since the person in possession is claiming the transfer was a gift, the burden of proof usually shifts. You would generally challenge the gift based on one of the following:
3. Form Numbers & Filing Requirements
There is no single "fill-in-the-blank" form for the petition itself because it requires a detailed legal narrative. However, you must use these standard Judicial Council coversheets and notices:
Form Name
Form Number
Purpose
Probate Case Cover Sheet
Check the specific court
Inform the court as to certain information pertaining to the petition
Notice of Hearing
DE-120
Must be served on the person holding the property 30 days before the hearing.
Order on Petition
DE-125
Judge signs, if you prevail
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4. The "Double Damages" Penalty (Section 859)
This is the most powerful deterrent in California probate litigation. If you file an 850 Petition and can prove that the person took the property in "bad faith," through undue influence, or through elder financial abuse, the court can order them to pay:
5. Next Steps
If the property is of significant value (like a house or a large investment account), a Section 850 Petition is a formal piece of litigation involving "discovery" (depositions, subpoenas for bank records, etc.).
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