120-Day Deadline Applies Only to Actions to Contest a Trust [Probate Code 16061.8]

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120-Day Deadline in Probate Applies Only to Actions to Contest a Trust

Many attorneys attempt to confuse trust beneficiaries and other parties by claiming that the 120-day deadline to contest a trust applies to actions not barred by this deadline.

Specifically, California Probate Code 16061.8 states that: “No person upon whom the notification by the trustee is served pursuant to this chapter, whether the notice is served on him or her within or after the time period set forth in subdivision (f) of Section 16061.7, may bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon him or her, or 60 days from the date on which a copy of the terms of the trust is delivered pursuant to Section 1215 to him or her during that 120–day period, whichever is later.” Cal. Prob. Code § 16061.8.

The statute establishes that an “action to contest the trust” must be brought up within 120 days. A “contest” is defined as “a pleading filed with the court by a beneficiary that would result in a penalty under a no contest clause, if the no contest clause is enforced.” Cal. Prob. Code § 21310(a).

Accordingly, the 120-day limit seemingly applies only to trust contests, not other issues such as concerns over omitted assets. The most common form of a trust contest would be to allege that the trust is not the operative trust because, for example, it had been amended, the signature had been forged, the trustee lacked capacity, or the trustee was under undue influence.

By contrast, raising concerns about omitted assets (via a Heggstad petition, for example) or claiming that the trustee stole assets during the decedent’s lifetime are seemingly not considered a trust contest and therefore are not barred by the 120 day rule defined by Probate Code 16061.8.

Similarly, in Estate of Stoker (2011) 193 C.A. 4th 236, the court held that a 120-day notice is only allowed once a revocable trust becomes irrevocable and thus does not apply to a trust that has been revoked.

Consult with a Trust Litigation Attorney

Many people, even seasoned attorneys, may erroneously believe that the 120 day limit is applicable to issues beyond trust contests. However, there is no clear authority stating that the 120 day period applies to anything besides contests.

The Trusts, Estate, & Probate Litigation Attorneys at Talkov Law practice in the areas of:

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