Statutes of limitations are the deadlines by which you must file a lawsuit. We are seeing more and more people miss the filing deadline in the California Trust and Will Litigation arena. We think the reason this is occurring is because the statutes of limitations for Trust and Will issues are complicated. There is not a single deadline that applies to all Trust or Will matters.
In personal injury matters, for example, you have two years in which to file a lawsuit. If you are in a car accident, punched in the nose, or slip and fall on a banana peel, the same time frame applies—two years. There are not different deadlines for different types of injuries. The two-year statute of limitations applies to all of these tort claims.
Compare that to Trust and Will matters and things start to get complicated. In Trusts and Wills there are different deadlines that apply to different claims. And those deadlines can change depending on circumstances that occur.
The One-year Deadline
For example, the easiest statute of limitation is the one-year deadline to file any claims against a decedent’s estate (as required under CCP 366.2). If a person who owes you money under a contract, or a tort claim, dies, then you have one year in which to file a claim in that person’s estate. The creditor’s claim process must be used BEFORE a lawsuit is filed against the decedent’s estate.
But that one-year statute can be shortened to 120 days IF a personal representative is appointed for the decedent’s estate. This rule applies even if you did not know a personal representative has been appointed. Luckily, if you do file a claim in the decedent’s estate, then the deadline by which you must file your lawsuit is tolled until such time as the claim is either accepted or rejected by the estate. If the claim is accepted, then the estate is agreeing to pay you what you are owed. If the claim is rejected, then the estate is refusing to pay you and you must then file your lawsuit to enforce your claim.
Things are a bit more complicated if you have a contract to make a Will claim. That is a claim where someone promises to leave you their estate, or some asset in their estate like a house, in exchange for you doing something for the decedent. Under CCP 336.3, these types of claims must be filed within one-year of the decedent’s date of death even though you file a claim in their estate. In other words, different claims against the estate are treated differently for lawsuit deadline purposes. Yikes!
Trust Contest
The deadline to contest a Trust or Trust amendment begins to run once you are served with a Trustee’s notification under Probate Code section 16061.7. The deadline is 120 days after service—that is a short deadline indeed. If you are never served notice under 16061.7, then the deadline never begins to run.
But you may still be barred from contesting a Trust is you wait too long and the court determines that your lawsuit was not brought within a “reasonable” time. This is referred to as Laches, another way the court can cut off your rights to contest a trust. Laches is an equitable doctrine that allows the court to exercise fairness. For example, if the Trust was administered ten years ago and all assets were distributed to the beneficiaries back then, the court would certainly decide it unfair to challenge the Trust today. Too much time has passed, all the Trust assets have long-since been distributed, your time’s up.
This means you must file your Trust contest either within 120 days of receiving a Trustee’s notification, or within a reasonable time period if no notice is given. Why not do both, file your trust contest quickly.
Financial Elder Abuse.
Financial elder abuse claims must be brought within four years (see Welfare & Institutions Code section 15657.7). That is a fairly straightforward deadline by which to file a lawsuit. But your right to file a financial elder abuse claim could be affected by a Trust contest lawsuit.
You see, in order to have the right to file a financial elder abuse claim you must be a “successor-in-interest.” That means you must be receiving a portion of the decedent’s estate. But if you have been disinherited under a Trust, and you do not contest that Trust, then you probably are not a successor-in-interest. That means if you have 120 days in which to contest a Trust, and if you fail to do so, then you may have also given up your right to file a financial elder abuse claim as well.
Even though the deadline to file a financial elder abuse claim is four years, it could be shortened to 120 days as a practical matter if you are disinherited from a Trust and have no other assets passing to you from the decedent’s estate. That’s a sneaky little complication that dramatically affects your legal rights.
Will Contests
You must contest a Will before it is admitted to probate. If a Will is admitted to probate, then you have 120 days in which to ask the court to revoke probate. After that timeframe, the Will cannot be challenged.
Probate is a court process by which the court first determines if a Will is valid, then appoints an executor to administer the Will in a court-supervised process. When a court issues an order declaring the Will is valid, we call this “admitting the Will to probate.” That term simply means that the court declares the Will valid. If a person asks the court to admit the Will to probate, and no one objects to that request, then the Will is most likely going to be admitted to probate (be declared as valid). Once this occurs, then the Will is valid for all legal purposes.
This means you must object to a Will being admitted to probate if you want to contest the Will. It also means that there is no deadline by which to contest a Will if no one ever asks the court to admit the Will to probate. In most estates, a Will is never admitted to probate because there are no assets passing under the Will. Instead, the assets pass by Trust or joint tenancy or some other form of asset transfer. If no one ever files a petition asking the court to admit the Will to probate, then the deadline to contest the Will never begins to run.
Trustee Breach of Trust
If you want to sue a Trustee for breach of Trust, then you have three years to do so from the date you knew, or should have known, of the facts giving rise to the breach. Also, you have three years to file a lawsuit on anything disclosed to you by the Trustee in a written accounting or written report.
If you are never given an accounting or a report, then the deadline to file a lawsuit never begins to run. Unless, you have actual knowledge of the facts supporting the breach. In other words, if you did not know what the Trustee did, and the Trustee never gave you an accounting or written report disclosing his actions, then your deadline to sue remains open indefinitely.
Obviously, you should not wait forever to take action against your Trustee. At some point in time, it will become difficult, if not impossible, to hold your Trustee liable for harms if you do not take action. You should always ask for information regarding your Trust and be sure you understand the actions your Trustee is taking with your Trust assets.
Lawyer Malpractice
This is the easiest of the bunch, or is it? You have one year in which to file a legal malpractice claim. But that deadline can be extended to four years if you did not know of the facts giving rise to the legal malpractice claim. It all comes back to what did you know, and when did you know it.
Furthermore, the statute can be extended for the period of time that the lawyer who committed the malpractice continues to represent you in the same matter.
This suddenly sounds more complicated. The most important deadline for any malpractice claim is the one-year mark because anything beyond that will be a more difficult fight and could subject you to being barred from bring your legal malpractice lawsuit.
Finding the Right Answer
Confused yet? You should be, this is complicated stuff. And it changes depending on the type of claim you are making, and the type of notice or documentation you have received at various times. What you should know is: don’t try to figure this out on your own. You need professional help from someone who can analyze all of your potential deadlines. You need a Trust or Will litigation expert. Doesn’t that tie this article back to us nicely? Another sneaky little trick—but one that will positively affect your lawsuit. You can’t blame us for trying.
