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Some Rules are Made to Be Broken: How a deadline to contest a California Trust may not apply to you

Under California law you only have 120 days after receiving notice to challenge the validity of a Trust. (See Probate Code section 16061.8.) That is a bright-line deadline that cannot be changed once notice is served. Or is it? What if a Trust is revoked before death; is a 120-day notice effective to challenging a revoked Trust?

The California Appellate Court answered this question with a resounding NO—a 120-day notice is not effective against a revoked Trust. (See Estate of Stoker (2011) 193 C.A. 4th 236.) In Estate of Stoker a decedent had created a Trust and pour-over Will in 1997, but he then created a new Will in 2005. Under the new hardwritten Will, he revoked the 1997 Trust and Will.

When decedent died, the named Trustee of the 1997 Will filed a 120-day notice on the children and later claimed that they could not challenge the validity of the 1997 Trust because they did not file a Trust contest in time—instead they filed to probate the 2005 Will. The question then became, what is the significance of serving a 120-day notice to beneficiaries of a revoked Trust?

The Court held that a 120-day notice is irrelevant where a Trust is revoked prior to death. For starters, the requirement to serve a 120-day notice falls on the Trustee of a trust under Probate Code section 16061.7. But a person named as Trustee has no authority to act once the Trust is revoked. As a result, the named Trustee had no power to serve a 120-day notice, and the notice was therefore unenforceable.

Furthermore, the Court held that a 120-day notice is only allowed once a revocable Trust becomes irrevocable. But the Trust never became irrevocable because it was revoked prior to death. As a result, the notice requirements under Section 16061.7 never arose.

There are many cases were several past Trusts are at play once someone dies, especially in the case of financial elder abuse where substantial changes may be made multiple times before death. This can lead to a lot of confusion as to which Trust must be contested and by when. Of course, the safest approach is to contest all Trusts that are not favorable to you and to do so before the 120-day time limit expires. But where you are dealing with an independently revoked Trust, the 120-day limit may not apply to you.