A loved one's trust became irrevocable: what notice must the trustee send, and how long do we have to contest it?

For most families with a living trust, the trust is the reason there is no probate case. That does not mean there are no rules. Our estate planning page describes the duties of a successor trustee, and the first formal one is a notice. Probate Code section 16061.7 tells the trustee when to send it, to whom and what it must say, and section 16061.8, as amended effective January 1, 2023, sets the deadline for anyone who wants to challenge the trust. This page explains both from the side of the trustee and from the side of the family member who receives the notice.

How does the notice and contest period work, step by step?

1. The trust becomes irrevocable. The usual trigger is the death of a settlor (the person who created the trust). Section 16061.7(a) also requires the notice when there is a change of trustee of an irrevocable trust and in a few other situations.
2. The trustee identifies who gets notice. Each beneficiary of the now-irrevocable trust, and each heir of the deceased settlor, whether or not the heir is a beneficiary (section 16061.7(b)). The trustee relies on any final court determination of heirship and otherwise makes a good faith determination by reasonable means (section 16061.7(c)).
3. The trustee serves the notice within 60 days. The deadline is 60 days after the death, or 60 days after the trustee learns of a person entitled to notice who was not known at the time. If the death left the trustee's office vacant, the 60 days start when the new trustee begins to serve (section 16061.7(f)). Service is by any method in section 1215, to the last known address.
4. The notice carries specific content. It identifies the settlor and the date the trust was signed, gives each trustee's name, address and phone number, gives the address where the trust is administered, and tells the recipient of the right to a copy of the trust terms (section 16061.7(g)).
5. It includes the warning. In a separate paragraph in at least 10-point bold type, the notice must say that the recipient may not bring an action to contest the trust more than 120 days from service of the notice, or 60 days from delivery of the trust terms during that 120-day period, whichever is later (section 16061.7(h)).
6. Recipients ask for the trust. On request, the trustee must give a beneficiary or an heir a true and complete copy of the terms of the irrevocable trust (section 16061.5(a)(1)).
7. The 120 days run. A contest filed after the later of the two dates is barred by section 16061.8. Trust disputes go to the superior court by petition under section 17200; in Los Angeles County, the Probate Division hears cases in courtrooms at the Stanley Mosk Courthouse, which our Stanley Mosk Courthouse guide describes.

Which deadlines apply after a trust becomes irrevocable?

The 120-day rule in section 16061.8 applies to people served because a revocable trust became irrevocable on a settlor's death, and it applies whether the trustee served the notice on time or late.

What changes the answer?

When you receive the trust terms

The deadline is the later of 120 days from service or 60 days from delivery of the trust terms during that 120-day window (section 16061.8). If you ask for the terms early and receive them quickly, the 120-day date usually controls. If they arrive near the end of the window, the 60-day extension can carry you past it.

Whether you were ever served

The 120 days are counted from service of the notification on you. A trustee who fails to serve a beneficiary is responsible for all damages, attorney's fees and costs caused by the failure, unless the trustee made a reasonably diligent effort to comply (section 16061.9(a)). For an heir who is not a beneficiary and whose identity the trustee knew, the trustee is responsible for damages unless the trustee delivered notice to the heir's last address actually known (section 16061.9(b)). The settlor cannot waive the notice requirement in the trust; a waiver is void (section 16061.7(i)).

A no contest clause

Some trusts include a no contest clause, which takes away a gift from a beneficiary who contests. Section 21311 limits that: a no contest clause is enforced only against a direct contest brought without probable cause, and against challenges to whether property belonged to the settlor or creditor claims only if the clause expressly says so. Probable cause exists if the facts known at filing would cause a reasonable person to believe there is a reasonable likelihood the relief will be granted after further investigation or discovery (section 21311(b)).

What you are really asking for

Not every disagreement is a contest of the trust's validity. Section 17200 lets a trustee or beneficiary petition about the trust's internal affairs, including interpreting the trust, settling the trustee's accounts, compelling a copy of the terms or an accounting, fixing the trustee's compensation, removing a trustee and redressing a breach of trust. Those petitions have their own rules; the account a trustee provides must state that claims for breach of trust may not be made more than three years after the beneficiary receives an account or report disclosing the facts (section 16063(a)(6)).

Whether the settlor also had a will or a TOD deed

Property in the settlor's name alone, including property a will directs into the trust, usually goes through probate on its own track, and a will's validity is tested differently; our page on whether a handwritten will is valid in California covers one common dispute. A house that passed by a transfer on death deed has its own 120-day notice to heirs under section 5681, which we compare in transfer on death deed or living trust.

A worked example

For example, imagine a hypothetical father in Glendale who dies in January, leaving a living trust that names his daughter as successor trustee and divides everything between his two sons. His daughter is not a beneficiary but is one of his heirs. She serves the notification on both sons by mail on March 2, within 60 days of the death.

As an illustration of the counting only: 120 days from March 2 is June 30. One son asks for a copy of the trust on May 15 and receives it on May 20. Sixty days from May 20 is July 19. Because July 19 is later than June 30, his last day to bring an action to contest the trust under section 16061.8 is July 19. The other son never asks for the terms, so June 30 is his date. Neither date says whether a contest would have merit; that depends on the facts, and section 21311 decides whether any no contest clause could apply.

Meanwhile, the daughter files the county change in ownership statement for her father's house within 150 days of the death (Revenue and Taxation Code section 480(b)). Section 16061.9(c) lets her consider, in timing distributions, that the contest period has not yet expired.

Common mistakes after a trust becomes irrevocable

• Skipping heirs who are not beneficiaries. Heirs of the deceased settlor must receive the notice even if the trust leaves them nothing (section 16061.7(b)(2)).
• Leaving out the bold warning. The 120-day language is required in a separate paragraph in at least 10-point bold type (section 16061.7(h)).
• Counting from the death instead of from service. For recipients, the 120 days run from service of the notice, not from the date of death.
• Waiting to ask for the trust. Request the terms promptly; the 60-day extension only applies if they are delivered during the 120-day period.
• Distributing everything on day 61. A trustee may take the open contest period into account in timing distributions (section 16061.9(c)).
• Forgetting the house. Real property held in the trust needs a change in ownership statement within 150 days of the death.

What to do this week

1. If you received a notice, write down the date it was served and count 120 days on a calendar.
2. Ask the trustee in writing for a complete copy of the trust terms, and note the date you receive them.
3. If you are the trustee, list every beneficiary and every heir, find their last known addresses, and count 60 days from the death.
4. Find any will, transfer on death deed, beneficiary designations and joint accounts, since those pass outside the trust.
5. If real property is in the trust, calendar the 150-day change in ownership statement; our guide to putting a house into a living trust explains the county forms.
6. If you need time away from work to handle the death, see our page on bereavement leave in California.
7. Talk to a lawyer well before the deadline; our questions to ask before hiring an attorney can help you choose.

Frequently asked questions

How does the trustee decide who the heirs are?

The trustee must rely on any final court determination of heirship it knows about, and otherwise may make a good faith determination by any reasonable means (section 16061.7(c)). Determining who is an heir can be complicated, as the statutory transfer on death deed form in section 5642 also warns.

Does the trustee have to send me the whole trust?

Not automatically, but on request. The notice must tell you that you are entitled to a true and complete copy of the terms, and the trustee must provide it when you ask (sections 16061.7(g)(5) and 16061.5).

What if the trustee cannot find a relative?

The trustee does not have to provide the notice to a beneficiary or heir who is unknown, or who is known but cannot be located after reasonable diligence (section 16061.7(d)).

Can I still get an accounting after the 120 days?

Yes. The 120-day deadline in section 16061.8 is for an action to contest the trust. A beneficiary may still petition about the trust's internal affairs, including compelling an account, under section 17200.

Does the notice mean the trust will go to court?

No. The notice is required whether or not anyone disputes anything. A petition is needed only when someone asks the court to decide a question; contested cases then move like other litigation, as our overview of the civil litigation process explains.

How is this different from probate?

The statutory percentage fees in Probate Code sections 10800 and 10810 are figured on property in a probate inventory, and property held in the trust is not in that inventory. We explain the schedule in how much probate costs in California.

How can Glendale Law help?

We guide successor trustees through the notice and the rest of the administration, and we advise beneficiaries and heirs who are weighing a challenge before the deadline passes. When a dispute cannot be resolved, our civil litigation work means the same team can take it to court. Call (818) 244-9000 or request a consultation.