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Modern Estate Planning Blog

Elder Law & Special Needs Planning

Ask Heather - Is there a statute of limitations on contesting a will or trying to enforce it?

October 18, 2011

Is there a statute of limitations on contesting a will or trying to enforce it? My niece just emailed and said that her grandmother died in 2005. Her father pre-deceased the grandmother. The father’s brother never gave her or her sister anything which should have gone to their father. Would your answer be different if she died intestate?

The answer to this situation really turns on the value of the assets, which determines whether the small estate collection procedures apply or a formal probate is required. The answer will be the same whether there was a will or the person died intestate (no will).

If this was an estate where the total asset value was less than $100,000 (that’s the threshold in CA to trigger a formal probate), then the small estate administration procedure applies. With this procedure, in most cases, there is no court involvement (unless there was real property in the estate – see below), no notices to beneficiaries/heirs. Instead of court oversight an Affidavit procedure is used to collect assets from the asset holder. There is a 3 year statute of limitations (from date affidavit is presented) for this procedure. What that means is that if one person collected the assets and really wasn’t the person entitled to collect, the proper person can bring an action to have the property returned if they find out about it and file their action within 3 years from the Affidavit being presented to collect the property. The person entitled to collect property is determined by the decedent’s will or intestate succession.

If the $100,000 included real property a court petition determining succession to real property is required with notice going to all the heirs at law and beneficiaries of decedent’s will.

If this was a larger estate where a full formal probate is required then the statute of limitations is 120 days or in certain instances any time before the entry of the order for final distribution. Notice of the Petition for Probate is required to the heirs and beneficiaries.

If a formal probate or other court petition was required and the personal representative (PR) failed to give proper notice or intentionally excluded someone there could be an action for fraud against the PR. In CA the statute of limitations is 3 years fraud actions.

Like any legal question the final answer is very fact specific. I recommend you seek the guidance of an experienced probate attorney.

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