Filing an Untimely Creditor's Claim

Marin County Civic Center

When a person passes away, they often owe money to various persons, namely creditors. These creditors might be a family member, a government agency, friend, neighbor, credit card company or even an ex-spouse. Creditors have strict filing deadlines when filing a claim in a probate proceeding. The particular filing deadline, or statute of limitations, will depend upon when the decedent passed away, when Letters were first issued or when a notice of administration was provided to the creditor. 

A recent unpublished appellate decision focused on the lack of timeliness by a creditor to file her claim.

"After Gary Kelson (Decedent) died, Paul Kelson (Executor) petitioned for probate of Decedent's will. Letters testamentary appointing Executor issued on December 7, 2021.

In May 2022, Objector filed a creditor's claim for more than $650,000.^[1] To support the claim, Objector attached a 2002 judgment in dissolution proceedings between Objector and Decedent. The judgment provided for Decedent to pay family and child support to Objector in specified amounts for specified time periods. In a subsequent filing, Objector explained that Decedent failed to fully pay the ordered support and further failed to return personal property identified as Objector's in the 2002 judgment.

In January 2023, Executor rejected Objector's claim. In filings supporting Executor's petition for final distribution, Executor stated Objector's claim was untimely. Objector filed a response and objections to the petition. Following a hearing, the probate court granted Executor's petition for final distribution. With respect to Objector, the court's order found Objector's claim was filed "more than 120 days following issuance of letters testamentary. [Objector] did not file a petition with this Court to allow her late-filed creditor claim under Probate Code section 9103. [Executor's] rejection of said claim as untimely was therefore proper."

The trial court's decision was later upheld on appeal by the California Court of Appeal. 

Estate of Gary Kelson, Marin County Superior Court case no. PRO2103356

Of note, the Marin County Superior Court is housed in the Marin County Civic Center, pictured above. This building was designed by renowned architect Frank Lloyd Wright. 

Promise of an Inheritance

Probate Code §366.3 provides that a party has one year to file a claim to enforce a promise or agreement made by a decedent regarding a distribution from an estate or trust. A recent unpublished appellate opinion involved the applicability of Probate Code §366.3 to the case's particular facts.

"Between the 1960s and the 1980s, decedent Junichi Frisco Yamasaki made repeated oral promises to leave his entire estate to his two sons, petitioners Daniel and Gene Yamasaki, in exchange for their financial support. In the 2000s, after a falling out with his sons, Junichi executed a will and a revocable living trust, through which he completely disinherited his children. In 2012, Junichi amended his trust, naming his long-time girlfriend and new wife, Reiko Nakazawa, as the trust's trustee and the primary beneficiary of his entire estate."

"Around late January 2013, Junichi was hospitalized, and later moved to a nursing facility, after his health deteriorated.

In April 2013, Gene drafted a new lease agreement for the Whittier Laundromat (Amended Lease). The Amended Lease named Junichi as the landlord and Gene as the tenant, and it provided that Gene would pay Junichi $500 per month for a 10-year term. The Amended Lease included two options, allowing Gene to extend the term of the lease for an additional 10 years. The Amended Lease also included an option allowing Gene to purchase the Whittier Laundromat for $5,000 at any time during the initial 10-year lease term or the extended terms. On April 15, 2013, Junichi signed the Amended Lease. Nakazawa signed the agreement as a witness to Junichi's signature.

Nakazawa later testified that she did not review the Lease and the Amended Lease, or otherwise understand what they were, before she signed them."

"In April 2013, Nakazawa filed a petition to be appointed as Junichi's conservator. Nakazawa alleged Junichi had been diagnosed with dementia, a heart condition, and macular degeneration and, as a result, was incapable of caring for himself, including his financial affairs. Nakazawa also alleged that Junichi never read or understood the Lease and the Amended Lease before he signed them. In December 2013, the trial court granted Nakazawa's petition.

In August 2014, Gene filed a petition to confirm the Lease and the Amended Lease under Probate Code section 850, subdivision (a)(3)(A) (Lease Petition).

In July 2015, Junichi died.

In September 2016, the court denied the Lease Petition, finding the Lease and the Amended Lease were unenforceable because Junichi suffered from dementia when he signed them and, therefore, lacked the capacity to enter into the agreements.

In December 2016, over a year after Junichi died, Daniel and Gene filed another petition under Probate Code section 850, subdivision (a)(3)(A), which sought to enforce Junichi's oral promises to leave them his estate when he died."

"In July 2021, the court issued a 23-page statement of decision. As a preliminary matter, the court found the brothers' claim to enforce Junichi's oral promises was barred by Section 366.3's one-year statute of limitations because they filed their petition more than one year after Junichi died."

The California Court of Appeal affirmed the trial court's decision.

Yamasaki et al. v. Nakazawa, Los Angeles County Superior Court case no. BP148064  

Failure to Prosecute

In California, a litigant is faced with numerous deadlines when prosecuting their case. For example, a litigant is required to file their claim within a certain time period depending upon the cause of action they allege in their lawsuit. If a litigant files a lawsuit for breach of a written contract, they have 4 years from the date of breach to file the lawsuit. Code of Civil Procedure §337. Additionally, if a litigant has been served with Requests for Admission, a form of written discovery, a litigant generally has at least 30 days to provide written responses. Code of Civil Procedure §§2033.010 - 2033.420. If a trial date has been scheduled, a litigant is required to complete discovery on or before the 30th day before trial. Code of Civil Procedure §2024.020. Suffice to say, the foregoing is not an exhaustive list of all statutory deadlines.

One deadline that is seldom enforced is the requirement that an “action shall be brought to trial within five years after the action is commenced against the defendant.” Code of Civil Procedure §583.310. Failure to bring a case to trial within 5 years can result in the case’s dismissal.

One recent unpublished appellate decision addressed the notice requirement needed to dismiss a case because of the failure to prosecute an action within the 5-year time period.

“This probate litigation arises out of a dispute between siblings Alana H. Dong and Raymond T. Dong over control of a revocable trust created by their parents. In July 2015, Alana petitioned for an order seeking, among other things, removal of Raymond as co-trustee. Raymond filed a competing petition; thereafter, he and his wife responded to Alana's petition. In February 2016, the trial court vacated the trial date pursuant to the parties' stipulation.

Then nothing happened in the case until late September 2022, when the trial court — on its own motion — dismissed Alana's petition for "[f]ailure to [p]rosecute." No parties attended the unreported hearing. The register of actions indicates the "entire action" was dismissed without prejudice.”

“Notice is required before a trial court dismisses an action under these statutes. (In re Marriage of Straczynski (2010) 189 Cal.App.4th 531, 538; Cordova v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526, 1531.) Section 583.360, for example, mandates dismissal "by the court on its own motion . . . after notice to the parties." (§ 583.360, subd. (a), italics added.)”

“No such notice was provided here. Reversal is therefore required because the dismissal order "did not comport with" the statutory scheme, the Rules of Court, or due process. (Cohen v. Hughes Markets, Inc., supra, 36 Cal.App.4th at p. 1699; Reid v. Balter (1993) 14 Cal.App.4th 1186, 1193 [dismissal order void where "plaintiffs were not given notice that their case would be dismissed if they failed to appear for the status conference"].)”

Dong v. Dong et al., Alameda County Superior Court case no. RP15777439

 

Distribution from an Estate or Trust

When one party gifts property to another, it is typically a quick process. For instance, a father says to his son, "the car is yours, here are the keys to your dream car, a 1996 Suzuki X-90." The father then hands the keys to his son and the son drives off in his fabulous 1996 Suzuki X-90. Or, a mother says to her daughter, "here is your grant aunt's antique Omega constellation watch which I inherited decades ago and now the watch is yours" and then hands her the watch.

However, enforcing a future gift can be a complicated endeavor. A recent unpublished appellate opinion focused on a daughter attempting to enforce a gift her father had allegedly promised her that would take effect upon his passing.

"Appellant Kelley Dupree claims her father gifted her a piece of real property during his lifetime but held the legal title for her benefit. Almost three years after her father died, appellant filed a petition seeking an order directing his estate to transfer legal title to her. The probate court sustained the demurrer of respondents David Yoder, William Yoder, and Tracey Leachman (respondents) without leave to amend, finding appellant's claim was time-barred by Code of Civil Procedure section 366.3, which sets a one-year statute of limitations for claims seeking distribution from an estate based on a promise or agreement by a decedent."

"Section 366.3 provides that a claim arising from "a promise or agreement with a decedent [for] distribution from an estate or trust" must be brought "within one year after the date of death." (§ 366.3, subd. (a).) The issue in this appeal is whether section 366.3 bars appellant's petition to convey title to property held by the decedent at the time of his death because appellant failed to bring that petition within one year of the decedent's death."

"In light of the facts alleged, this case presents a relatively straightforward question of statutory interpretation: Is a petition to enforce a promise to convey legal title upon death a claim for a distribution from an estate or trust within the meaning of section 366.3? We conclude that it is."

The appellate court upheld the trial court's decision.

The rationale for imposing a 1-year deadline to bring a claim against an estate or trust for a distribution is to ensure the orderly administration of estates. For example, assume the decedent's house was sold during probate. Years later, a party brings a claim against the estate, alleging that the decedent promised him the home upon his death for being his caretaker at the end of his life. During this period, the house has been sold multiple times. If the claimant were successful, multiple transactions would need be unwound in a very messy process.  

Estate of Yoder, Shasta County Superior Court case #29522

Filing a Timely Claim

A litigant can having a winning case but still lose. How can this be you ask? 

The law, known as the statute of limitations, requires parties to timely file their claims. This law prevents parties from indefinitely waiting to file their claim. By imposing this requirement on litigants, it ensures finality to matters once the requisite amount of time has elapsed. Otherwise a litigant could resurrect an ancient claim that would frustrate the current climate. This brings us to a recent unpublished appellate opinion. Kern County Superior Court case # S-1501-PB-62540, Estate of Catlin.

Gretchen Brown claimed that her mother, Lynda Catlin, promised Ms. Catlin's residence to her upon Ms. Catlin's death. However, a few days before Ms. Catlin passed away, she executed a grant deed which transferred the home to Mark Chagoya as "husband and wife as joint tenants." Catlin was not legally married to Mr. Chagoya, as her prior marriage had not been formally dissolved.
 
The unpublished opinion noted irregularities regarding the execution of the deed:

"The notary who notarized Catlin's signature on the grant deed testified that her sequential journal had been lost or stolen after notarizing Catlin's signature. There was no evidence the notary informed the Secretary of State that the journal had been lost or stolen.

Additionally, a doctor testified that the dosage and type of pain medication provided to Catlin was "substantial," and its effect would depend on her "tolerance." Some evidence indicated Catlin's ability to communicate worsened each day beginning with her hospitalization on January 29, 2011.

There was also evidence that on the day after the grant deed was executed, Chagoya said, "I got everything I want anyway," before leaving the hospital."

The trial court invalidated the deed and imposed a constructive trust on the property for Ms. Brown's benefit. Mr. Chayoga appealed this judgment.

The appellate court reversed the trial court's decision, finding that Ms. Brown did not file her constructive trust claim within the statute of limitations. Ms. Brown had 1 year to file her claim because it related to "a claim that arises from a promise or agreement with a decedent to distribution from an estate or trust or under another instrument, whether the promise or agreement was made orally or in writing." Ms. Catlin died on February 4, 2011. Ms. Brown filed her petition on January 28, 2013. 

The opinion concludes with "[w]e only hold that Brown is not entitled to a constructive trust on the property (or the proceeds of its sale) based on her oral agreements with Brothers and Catlin." 

Estate of Michael Jackson

It is hard to believe that Michael Jackson passed away practically a decade ago. He passed away on June 25, 2009. 

Simply put Michael Jackson was a world-famous musician. He still is my sister's favorite musician. I can remember listening to his music as a child during the 1980s on a boombox that was playing a cassette tape. How times have changed.............

Following Mr. Jackson's passing, 4 individuals came forward to assert a claim against his estate. The claimants alleged that Mr. Jackson had promised them a share of a new company during a meeting on June 1, 2006 in Japan.  

However, no claim was immediately filed after the co-executors had been appointed on November 10, 2009 to administer Mr. Jackson's estate. 

Instead, according to the unpublished appellate opinion, "[o]n December 20, 2012, El-Amin wrote to the executors advising them of the June 1, 2006 meeting and claiming that at that meeting Jackson had made promises to appellants of ownership interests in his company and had stated how those supposed equity interests would be allocated."

This prompted the co-executors into action. 

"On January 28, 2013, the executors filed their "Petition for an Order Determining that the Estate of Michael Joseph Jackson Is the Sole Member and Owner of the Michael Jackson Company, LLC," pursuant to Probate Code section 850 (the Petition), by which they sought an order confirming that "the Estate is the sole member and owner of the [LLC] and that no other person has an interest in the [LLC]." The Petition noted that Jackson had been listed as the sole member of the LLC on the Estate Inventory and Appraisal, filed in 2011."

"On May 7, 2013, Morris and El-Amin filed a complaint in the Los Angeles Superior Court, seeking damages for Jackson's alleged repudiation of the claimed joint venture among the parties which they alleged had been formed at the meeting in Tokyo to determine the value of their interests in the claimed joint venture and to obtain damages for its breach."

The probate petition and civil action were eventually consolidated. 

"Following a multi-day bench trial on the Petition in the probate court and posttrial briefing, on March 27, 2017, the trial court issued a 27-page minute order containing its credibility determinations, findings of fact and legal rulings. The court determined the Estate was the sole owner of the LLC."

On appeal, the appellate court affirmed the trial court's decision.

The crux of claimants' case was the delayed filing. Mr. Jackson passed away on June 25, 2009. Code of Civil Procedure § 366.2 generally imposes a strict 1-year deadline to file a claim against a decedent's estate. No exception to Code of Civil Procedure § 366.2 applied to this matter, so the claimants needed to file their claim by no later than June 25, 2010. Unfortunately for the claimants, their claim was filed after June 25,  2010 and so their claim was time-barred.

Filing a Will

It is seldom a prudent decision to delay filing a document. The law imposes a statute of limitations on parties to submit documents in a timely fashion or else their claim is time-barred. The following unpublished appellate opinion highlights what happens when a party waits too long to file: 

"Appellant Gregory Smith challenges the court's determination that his attempt to introduce a copy of a holographic will into probate of the estate of his mother, Helen Louise Smith, was untimely under Probate Code section 8226. Section 8226, subdivision (c)(1), requires the proponent of a will to petition for probate within 120 days of an order determining the decedent to be intestate. Here, Gregory filed a petition for probate of the holographic will over 11 months after the court determined Helen died intestate. Despite the late filing, Gregory appeals the court's decision that the filing of the petition was untimely even assuming Gregory was entitled to the benefit of equitable tolling to extend the statute of limitations period."

The following excerpt encapsulates Mr. Smith's problem:

"The trial court assumed that attorney Schultz's possession of the holographic will for roughly six months served as an impediment to Gregory's filing the petition for probate. The trial court even further assumed that the tolling event continued until Gregory's March 24, 2016, meeting with Lee, after he received the will back from Schultz on March 7, 2016. At that meeting, Gregory was expressly advised by the estate attorney to get his own attorney if he wished to proceed on the holographic will. Even so, over 120 days passed before Gregory filed the petition for probate. Using the latest possible date of March 24, 2016, the 120-day filing deadline expired on July 22, 2016, and Gregory filed the petition on August 3, 2016.  

At the time of the March 24, 2016, meeting, Gregory was in personal possession of the holographic will. The trial court found that Lee advised Gregory to obtain his own counsel to act should he wish to pursue his rights to admit the holographic will into probate. No impediments prevented Gregory from petitioning the court at that time. His delay of more than 120 days in filing the petition evinces a lack of diligence separate and apart from any impediment created by Schultz. Despite having possession of the holographic will and express notice from Lee that he needed to act should he wish to enter the holographic will into probate, Gregory failed to act promptly."

Estate of Smith, Tuolumne County Superior Court Case # PR11349

Will Contest & Statute of Limitations

A litigant often files a petition to contest the validity of a testamentary document shortly after discovery of the supposed flawed document. Rarely does a litigant delay filing suit. One principal reason for this is because of the statute of limitations. 

A litigant might have a colorable claim, but the law imposes on them the requirement to file suit in a timely manner. Otherwise their claim is time-barred because of the statute of limitations and their case will be dismissed. This produces finality to matters. If a litigant has an endless amount of time to file suit, this can be disruptive to any party because there is no assurance that the legal situation has been resolved. For example, if real property is involved, the owner will be discouraged from improving it as they fear a lawsuit could cause them to relinquish ownership in the property.

The facts of one recent unpublished appellate case related to a will contest that was unsuccessful because the statute limitations had run.

"Craig sued the estate of his father's widow and other individuals for intentional interference with expected inheritance and constructive trust contending the holographic will submitted to probate by his father's widow was fraudulent and the defendants intentionally used an incorrect address for Craig so he was not given proper notice of the probate proceedings. He alleged he did not discover the fraud until he reviewed the probate file in 2014.

In their answers, the defendants asserted the statute of limitations as an affirmative defense. Following a bench trial, the court found the statute of limitations expired for Craig's action and found in favor of all the defendants.

At Craig's request, the court prepared a settled statement setting forth the procedural background of the case and identifying the witnesses and evidence presented at the bench trial. The court summarized its findings, stating: "the [c]ourt found that the statute of limitations has expired and ruled in favor of defendants. Plaintiff claims that the will that was probated 24 years ago was fraudulent. Defendants established that the will and probate of deceased, Samuel C. Craig, Sr., was properly executed 24 years ago and that the probate was properly heard before San Diego Superior Court. The [s]tatute of [l]imitations bans a challenge to the will and probate after a 20[-]year delay. Case was dismissed." 

Craig v. Cardona, San Diego County Superior Court case # 37-2015-00010184

Breach of Trust and the Statute of Limitations

Probate Code § 16460(a)(2) provides that if "an interim or final account in writing or other written report does not adequately disclose the existence of a claim against the trustee for breach of trust or if a beneficiary does not receive any written account or report, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within three years after the beneficiary discovered, or reasonably should have discovered, the subject of the claim."

So you better file your petition on time.............

A recent unpublished appellate opinion touched upon this issue. Kathleen, a trust beneficiary, was a party to a trustee removal petition filed by another beneficiary, her sister Kelly Sue. The petition was filed in 1987. 

The 1987 petition stated that the trust was established for educational purposes to benefit the settlor's children, which included Kathleen and Kelly Sue.

The 1987 petition stated that "the entire trust is to be distributed in equal shares to all living beneficiaries on December 5, 1998, when the youngest beneficiary turned 25 years old." 

In 2015, Kathleen filed "an amended petition for redress for breach of trust, for fraud and punitive damages, conversion, constructive trust, injunctive relief, and declaratory relief." The petition alleged that Kathleen never received any distributions from the trust.

Kelly Sue was the respondent in the 2015 petition.

Kelly Sue's demurrer was sustained without leave to amend (a coup de grace in litigation) because Kathleen had failed to timely file suit, i.e. the statute of limitation had run. See Probate Code § 16460(a)(2). The reason being is that Kathleen's claim accrued on December 5, 1998. She did not file suit until 2015, more than 3  years after her claim had accrued. 

Kathleen argued that she lacked actual knowledge of wrongdoing by Kelly Sue. The California Court of Appeal was unmoved. "Kathleen cannot toll the statute of limitations by claiming she was unable to discover the claim by the distribution date. Her own allegations in the amended petition demonstrate she had actual knowledge of the existence of the trust; her status as a beneficiary of the trust; and the contents of the removal petition, which attached to it was the trust as an exhibit. In addition to her actual knowledge, Kathleen had constructive knowledge of the trust and its terms because she admits she was a trust beneficiary. As a beneficiary, she was entitled to request a copy of the trust and related information, through which she should have reasonably discovered the distribution date. Kathleen was also on inquiry notice as a trust beneficiary, and could have obtained information about the trust, as she eventually did in 2013 through public records. Unlike the situation in Quick, where the existence of the trust and the petitioner's status as a beneficiary were hidden from the plaintiff, thereby tolling the statute of limitations, here, Kathleen had actual and constructive knowledge of the trust and its terms."

Dunphy v. Wilken, Orange County Superior Court Case # 30-2015-00779480

Litigation involving a Decedent

When a person passes away, the law does not automatically grant them immunity from civil litigation. A cause of action survives the decedent's death. 

For example, assume the decedent prematurely broke a fixed-term lease because he wanted to follow the summer tour of the Grateful Dead (assume they are still touring). The landlord vowed to sue the decedent once he returned from his vacation. When the landlord returned from vacation he discovered that his former tenant had passed away in a tragic hot air balloon accident (the Grateful Dead were not playing that day). Normally the landlord would have 4 years to commence suit against his former tenant. CCP § 337.2. However, since his tenant passed away, the time limit changed.

CCP § 366.2(a) reads "If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply."    

So the landlord now has 1 year to file suit rather than 4 years. If the landlord does not timely file suit, his claim is time-barred and is subject to dismissal with prejudice. That is, the landlord could not re-file his suit at a later time.    

This 1 year time limit is known as the statute of limitations. 

Many people ask if they can sue for some hypothetical reason. The answer almost always depends on what type of action they seek to file suit. One cause of action, personal injury or wrongful death, has a 2 year statute of limitation. CCP § 335.1. Another cause of action, trespass or injury to real property, has a 3 year statute of limitation. CCP § 338. What makes CCP § 366.2 unique is that it overrides the statute of limitations of the other statute. As mentioned above, the landlord would have 1 year to sue instead of 4 years because the tenant passed away before he filed suit. In other words, CCP § 366.2 trumps CCP § 337.2.

For reference "CCP" stands for the California Code of Civil Procedure. It can be found here 

http://leginfo.legislature.ca.gov/faces/codes.xhtml

Laches - Equitable Defense

Invariably a person will make a mistake and a claim will arise. Yes humans are not robots despite what Skynet, the Internet or some late-night informercial tells you. At that time, the claimant is expected to pursue their cause of action in a timely manner. If the litigant unreasonably delays in bringing suit, even though the statute of limitations has not run, they may be denied equitable relief.

The legal term for this affirmative defense is "laches." California case law requires that to prove laches, the defendant must demonstrate unreasonable delay on the part of the plaintiff, plus either prejudice to the defendant because of the delay or disregard by the plaintiff towards the defendant's conduct. Johnson v City of Loma Linda (2000) 24 C4th 61. The issue of laches has to be raised by the defendant, otherwise it is considered waived. Getz v Wallace (1965) 236 CA2d 212. Thus, the defendant cannot answer the suit and then raise the issue of laches later on. In other words, you use or lose it during the initial pleading stages.  

For reference, the statute of limitations is the window of time available to a litigant to assert their right, claim, etc. If the litigant does not assert their claim within the applicable time frame, typically the filing of a lawsuit, their claim is time-barred and is subject to dismissal by the defendant. For example, the statute of limitations for breach of a written contract is 4 years from the date of breach. CCP § 337. This means that the non-breaching party has 4 years from the date of breach to file a lawsuit against the breaching party.

It should be noted that the statute of limitations for various causes of action is not uniform. The statute of limitations for breach of a written contract is 4 years whereas the statute of limitations for breach of an oral contract is 2 years. CCP § 339. Hence, it is critical to know which cause of action is being plead.     

Also of note is the term "affirmative defense." An affirmative defense is where the defendant does not deny the plaintiff's allegations, but rather admits to such conduct but is nonetheless not liable for another reason, such as laches.  Thus even if the defendant conducted themselves in a wrongful way, laches might nonetheless save them if the plaintiff dithered in bringing suit.

Ultimately a plaintiff seeking equitable relief has a few hurdles to keep in mind. First, they need to file their claim within the applicable statute of limitations period. Second, they need to be aware of various equitable defenses such as laches. 

Beneficiary Notification - Prob C § 16061.7

An issue when litigating a matter is timeliness. Sometimes a litigant can be premature while other times the litigant can be tardy. It is rarity though for a person to be both too early and too late in the same matter. Amazingly, such was the case of a litigant named Edward Bridgeman who wanted to challenge the validity of amendments to his father's trust.  Bridgeman v. Allen, CA Court of Appeal, 2013    

Henry and Kathleen Bridgeman created a revocable trust, naming themselves as co-trustees and their son Edward Bridgeman as beneficiary. Following Kathleen's death, Henry became sole trustee. "In 2004, Henry was diagnosed with dementia and possible Alzheimer's disease. In February or March of 2005, Donna Allen began taking care of Henry. In March 2005, Henry signed an amendment to the Trust, naming Allen as the sole beneficiary and successor trustee. Henry also appointed Allen as his attorney in fact on a durable power of attorney and advanced health care directive."

Edward filed a petition to invalidate this amendment. However, his petition was dismissed because he lacked standing as the trust was still revocable. The trial court's ruling noted that the dismissal did not prohibit a future filing by Edward.

In July 2011, Henry passed away and Beverly Brito, having replaced Ms. Allen who had been removed as trustee, served notice to Edward per Prob C § 16061.7. This notice contained the phrase, as required by California law, "you may not bring an action to contest the trust more than 120 days from the date this notification by the trustee is served upon you." Prob C § 16061.7. Edward, who was living out of state, receive this notice in July 2011.

On November 17, 2011, more than 120 days after notice was given, Edward sought relief to have his claim not be barred by the statute of limitations. Edward's attorney made a clerical error so the filing was actually not filed until until November 21, 2011. The trial court denied his claim as it was not within the 120-day window. On appeal, Edward argued that since he was an out-of-state resident, an extra 10 days should apply to the statute of limitations. CCP § 1013.

The Court of Appeal rejected this argument because it found that CCP § 1013 is the default rule and the probate code had a specific rule for providing notice. Thus, in terms of the statute of limitations, Prob C § 16061.7 was controlling, CCP § 1013 was not. In the words of opinion "Read together, the plain language of these statutes provide that an action to contest the trust must be filed within 120 days from the date the notification by the trustee is served (§ 16061.8), service may be by mail (§ 1215, subd. (a)), and mailing is complete and may not be extended when the notice is "deposited in the mail." (§ 1215, subd. (e).)"

Ultimately, Edward's claim was rejected as he had not timely filed within the applicable statute of limitations. His deadline to file was November 8, 2011 and he had filed on November 21, 2011. Thus Edward was surprisingly too early and too late with his filings in the same case.