Probate matters in California have very strict procedural guidelines (governed by the Probate Code) on who has to receive notice of a petition, and for how long. The requirement are so strict, that people representing themselves can find them nearly impossible to figure out and comply with. Failure to follow these complex procedural requirements can lead to unnecessary delays in the case (often for months at a time), or in some cases even dismissal or denial of a petition. Included below is a list of various petitions and their notice requirements.
Contesting a Will
When a will is contested under Probate Code Section §8004, the contestant must file court an objection to probate of the will. A summons must be issued and served, with a copy of the objection, on all of the Decedent’s heirs (whether or not they are in the will), and anyone named in the will, whether to receive a gift, or named as an executor. (Probate Code §8110)
The summons must be issued and served just as in a garden variety civil case, i.e.: by personal service. As with a civil case, the summons contains a direction that the persons summoned must file with the court a written pleading in response to the contest within 30 days after service. (Probate Code §8250)
Contesting a Trust
How long does a beneficiary have to file a lawsuit against you as Trustee? It depends. If a Trustee’s notice is served under Probate Code §16061.7, the beneficiaries have 120 days to file a contest the Trust terms. If a beneficiary wishes to challenge the trustee’s action, that statute remains open indefinitely unless the trustee provides an accounting to the beneficiaries. Once an accounting is provided (assuming is fully discloses all actions the Trustee took), the beneficiary has three years to sue the Trustee. If an accounting is filed, which seeks approval, the beneficiary must either object prior to court approval or be forever barred from suing the Trustee for everything reported in the accounting.
The Trustee’s notification shall be served on each of the following: (1) Each beneficiary of the trust or any portion of the trust; (2) Each heir of the deceased settlor; (3) If the trust is a charitable trust subject to the supervision of the Attorney General, to the Attorney General. (Probate Code §16061.7(e))
The Trustee’s notification must be served not later than 60 days following the occurrence of the event requiring service of the notification by trustee, or 60 days after the trustee became aware of the existence of a person entitled to receive notification by trustee, if that person was not known to the trustee on the occurrence of the event requiring service of the notification. If there is a vacancy in the office of the trustee on the date of the occurrence of the event requiring service of the notification by trustee, or if that event causes a vacancy, then the 60-day period for service of the notification by trustee commences on the date the new trustee commences to serve as trustee. (Probate Code §16061.7(f))
Probate Code §17200
The notice period for a trustee’s petition for instructions under Probate Code §17200 is 30 days. However, if a trustee uses the Notice of Proposed Action (“NOPA”) procedure to communicate a proposed course of action to a beneficiary, the notice period is 45 days. Nowhere else in the Probate Code pertaining to the administration of trusts is a 45 day notice period required. It should be noted that the timeframe for a NOPA in a probate matter is only 15 days. This is the same time frame applicable to most hearings in probate matters. Not only may a trustee presently seek court approval of a proposed action with only a 30 day notice requirement, but in order to object the beneficiary must file a response to the petition stating his or her reasons for objecting.
Heggstad 850 Petition
A Heggstad petition filed under Probate Code §850 requires 30 days’ notice to all interested parties. In some cases personal service is required so make sure your attorney knows exactly what the probate code requires because failure to follow the rules specifically will cause a Heggstad petition to fail. This 30 day notice requirement is longer than the normal 15 day requirement of most other probate Court petitions. Aside from the longer notice period, a Heggstad petition should be prepared, filed, heard by the Judge, and finished within approximately 60 days. This is substantially shorter than the 7 months(minimum) that a full probate takes.
Petition for Probate of Intestate Estate
At least 15 days before the hearing of a petition for administration of a decedent’s estate, the petitioner shall serve notice of the hearing by mail or personal delivery on all of the following persons:(a) Each heir of the decedent, so far as known to or reasonably ascertainable by the petitioner.(b) Each devisee, executor, and alternative executor named in any will being offered for probate, regardless of whether the devise or appointment is purportedly revoked in a subsequent instrument. (Probate Code §8110)
Petition for Probate of Will
A hearing on a petition for probate of will is set for a day not less than 15 nor more than 30 days after the petition is filed. At the request of the petitioner made at the time the petition is filed, the hearing on the petition shall be set for a day not less than 30 nor more than 45 days after the petition is filed. The court may not shorten the time for giving the notice of hearing. Additionally, a petitioner must serve and publish (yes, in a newspaper) notice of the hearing.
Petition for Special Administrator
Appointment of a special administrator may be made at any time without notice or on any notice to interested persons that the court deems reasonable. [Probate Code §8541(a)] For example, the court can dispense with notice of the petition to appoint a special administrator without general powers.
TLD Law can ensure that all of these notice requirements are met and we are here to advise you on any and all probate issues you may have. Please feel free to call our office to get started.
Author – Brian Ramsey, Esq. TLD Associate