Dangerous Deadlines! Statutes of Limitation in Your Trust or Will Lawsuit

In this video, partner Keith A. Davidson discusses the various statutes of limitations that could apply to your Trust or Will lawsuit. The deadlines by which you must file or be forever barred from suing at any time in the future. (12/31/2020).

The following is a transcript of this video:

In this video, I want to talk about statutes of limitations, deadlines. These are the dates by which you must take legal action by filing something in court or you are forever time barred from ever acting or ever suing again.
The problem with trust and will lawsuits is there’s a lot of different statutes of limitation. In fact, there’s many, there’s dozens. And it’s very difficult from a typical finder bender lawsuit. So if you have a personal injury, you generally have one statute of limitations you have to worry about. You have to file your lawsuit within two years. That’s pretty much all you have to worry about.

In trust and will lawsuits, the statute depends on not just the type of claim that you have, but it also depends on the type of document that you’re suing about. So, for example, if you have a trust that you want to try to overturn, a trust contest case, your statute of limitations isn’t going to begin to run until you get trustee notification. Once you get the trustee notification, then you have 120 days within which to file your trust contest lawsuit. And that’s 120 days from the time the notice was mailed to you. Not the day you receive it, the day it was mailed to you.

So you can imagine, if you get a notice from a trustee that has the 120 day language on it, you better act fast because your time is very, very short. If you don’t get the trustee notification, then your statute of limitation stays open, I wouldn’t say indefinitely, but for a very long time because there’s been no notice.

But that only applies to trust contests – when you’re trying to invalidate the document.
If what you’re trying to do is challenge the trustee’s management of the trust. Let’s say they mismanaged something. They’re not making distributions, they’re stealing assets. That’s a whole different statute of limitations. That statute of limitations is three years from the date that you had knowledge or should have had knowledge that you had a claim. And one of the easiest ways to have knowledge of the claim is in a written report. So if you’re given an accounting, or any type of written report, there is a three-year statute of limitations.

But there’s an exception to that. If the trust has certain language in it that allows the trustee to limit the statute down to 180 days, so the trust has to have that provision, and then the trustee has to put that language in the written report or in the written accounting, then your statute is only 180 days.

So you see how the statutes are all over the place? 120 days, three years, 180 days. And that’s just for very distinct type of trust actions.
For example, if you’re going to do a will contest, your statute is you have to contest the will either before it’s admitted to probate by the court or within 120 days after it’s been admitted to probate. If nobody ever submits a will to court to have it probated, the statute remains open pretty much indefinitely. And so that one’s all over the board.
If you have a claim against a decedent because, let’s say, a surviving spouse breached the trust terms in her capacity as trustee. Well, once the surviving spouse dies, you only have a one-year statute of limitation to file against that surviving spouse’s breach of trust claims. And you have to file that in their estate.

But, then again, if a probate estate is open for that surviving spouse, and general letters are issues to a personal representative, then you only have four months from when the letters are issued to issue to file a claim for breach of trust. So, again, the statutes are all over the place. They’re a year, they’re four months, they’re here, they’re there.

This is the problem with trust and will lawsuits is that the deadlines are just ridiculous and they can really be confusing and it’s very easy to miss a deadline and once you do, that’s it, case over.
So the first thing you want to do is immediately once you understand that you’re either a beneficiary of a trust or will or you should have been, you really want to seek legal advice right away and you want to take action very quickly.