Hi, my name is John T. Anderson. Welcome to my blog! I have been practicing law in California since 1975 and have been the Chairman of the Estate Planning and Probate Section of the Long Beach Bar Association since the mid-1980s. I'm also certified by the State Bar of California Board of Legal Specialization as a specialist in Estate Planning, Trust and Probate Law. On this blog, you will find articles written by me regarding estate planning and probate in California. Many of these articles address recent changes in the law and summaries of the Long Beach Bar Association’s Estate Planning and Probate Section meetings. I hope that you find these articles helpful. If you would like more information about me or my law office, please visit my website at or contact my office at 562.424.8619.

Wednesday, September 8, 2010

How Long to Wait After a Death to Take Legal Action

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

 How Long to Wait After a Death to Take Legal Action

In the Estate of Paul Ziegler, which was reported August 31, 2010, claimants waited one year and three weeks to file their claim.  The Appellate Court determined that was three weeks too long.

The “Code of Civil Procedure §366.3(a) provides: ‘If a person has a claim that arises from a promise . . . to distribute from an estate or trust or under another instrument . . . an action to enforce the claim to distribution may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.’”

The real parties in interest are decedent’s neighbor, who became his caregiver (Richard and his wife), and W.C. Cox and Co, an heir search company “acting as the attorney-in-fact for nine residents of Germany” who claimed as heirs of decedent.

The court acknowledged that all of the equities seemed to be with Richard.  He and his wife lived next door to decedent and over the years shopped for him and took care of him more and more. The court referred to Cox & Co. as being “soulless.”

Decedent finally told Richard that he had no family, so he wanted to leave Richard his house for all Richard had done for him.  He had Richard write-out that he was signing over his home to Richard.  It was to be in “exchange of my care and daily meals.  This note will be immediately active if and when I no longer can reside in my home due to death.”  Decedent and Richard signed.  It was witnessed.

Decedent died January 15, 2006 at 60 years of age.  Richard notified known relatives and then moved into the home and started making improvements.

The Public Administrator filed a Petition for Administration of the Estate in September 2006 and was appointed Administrator in October 2006.

Richard filed his claim on February 9, 2007 for the cost of improvements he had made.  On February 13, 2007 Richard filed an alternative claim on the value of the house.

In May 2007 the Administrator filed a Petition for Instructions favoring Richard.  Cox filed objections based upon violation of the Statute of Limitations and a Petition to Determine Persons Entitled to Distribution.  In September 2007 Richard filed an 850 Petition for the house itself.

The Trial Court ruled in favor of Richard finding that the contract was to be performed upon Ziegler’s death and was never breached, so the statute of limitations never ran.
The Appellate Court overturned the Trial Court’s decision citing CCP §366.3; that the statute commenced running at the date of decedent’s death.  The Statute of Limitations “runs from the date of death, not the date on which the cause of action accrues.”

The Appellate Court did note that an exception might be where “estoppel to assert the statute of limitations” occurs due to indications by the personal representative that they intended to comply and perform on decedent’s agreement.  But this was not raised as an issue in this case.

The Appellate Court reviewed the concerns of the Legislature in passing these limitations . . . the hardship to the beneficiaries and administrators if there was no cut-off date for claims.

Although the payment of a claim is not normally referred to as a distribution, the legislature made it clear that a contract to make a Will is a claim to distribution of an estate and a promise to make a distribution is subject to the same limitation period.

Even Richard’s alternative claim in quantum merit is barred by CCP §366.2's similar one year statute of limitations.

MARK YOUR CALENDAR: Upcoming Long Beach Bar Estate Planning, Trust and Probate Section Brown Bag Meetings at the Long Beach Superior Court, Dept. G (5th Floor), from noon to 1 PM:   

Thursday, October 21, 2010 Judge Mitchell Beckloff on Updates from LA Dept.5:  What’s Happening in Probate

December 2, 2010, Jim Birnberg, Esq. on Legislative Updates

NOTE: THE PROBATE CALENDAR WILL HENCEFORTH BE CALLED IN DEPT G on the 5th Floor (still Thursday afternoons, but not in Dept. 11)

                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and  Estate Planning
                By the California State Bar Board of Legal Specialization

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