ARE ORAL PROMISES TO MAKE A CALIFORNIA TRUST OR WILL ENFORCEABLE?
Oral promises to make a California trust or Will generally arise when a person orally promises a child, a friend, or a caretaker some or all of their assets once they die. More commonly, the promise is based on the child, friend, or caretaker agreeing to do something for the promising person. The “something” usually takes the form of the child, friend, or caretaker taking care of the person until the person’s death.
But what if the person does not get around to writing a will or trust that states the child, friend, or caretaker gets some or all of the person’s assets after they die? Or, even worse, what if the promising person never intended to write a will or trust reflecting the promise to the child, friend, or caretaker? Can the child, friend, or caretaker enforce the now deceased person’s oral promise to give them assets? The answer is ‘yes’.
California law provides for the enforcement of oral promises to make a will or trust (California Probate Code § 21700(4) (5) by establishing that there was an agreement between the promising person and the child, friend, or caretaker that the promising person would leave some or all of their assets to the child, friend, or caretaker after they died.
However, before one can file a lawsuit based on a broken promise to make a will or trust, one must first file a “creditor’s claim” in the estate of the deceased person. Generally, a creditor must file a creditor’s claim within 4 months after letters issue or 60 days after the date notice of administration is mailed or personally delivered to the creditor. However, a potential creditor with actual notice of the pendency of estate proceedings cannot excuse the untimely filing of a creditor's claim on the ground that the administrator failed to send a formal 60 day notice of administration of the estate as required by Prob C § 9050; see Venturi v. Taylor (1995) 35 Cal.App.4th 16, 18.
Once a timely creditor claim is filed and served under the creditor's claim procedures, the 1-year statute of limitations period of CCP §366.2 is tolled until a formal rejection of the claim is served by the personal representative. Prob C §9352 (a). Once a formal rejection is served by the personal representative, the creditor has only 90 days to file suit to enforce the claim. Prob C §9353.
Please contact me if you are involved with the death of a person with or without a Will and especially of the deceased person had business interests. You can reach me by phone at (760) 989-4820 or through my online contact form. I handle probate matters in all California counties, including Southern California Counties, such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I also represent parties residing outside of California that have probate matters affecting real and/or personal property in California.
To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820.
Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.
Copyright © 2023, William K. Sweeney, Attorney at Law. All rights reserved. Unauthorized use and/or duplication of this material without express and written permission from this article’s author and/or owner is strictly prohibited.
ARE ORAL PROMISES TO MAKE A CALIFORNIA TRUST OR WILL ENFORCEABLE?
Oral promises to make a California trust or Will generally arise when a person orally promises a child, a friend, or a caretaker some or all of their assets once they die. More commonly, the promise is based on the child, friend, or caretaker agreeing to do something for the promising person. The “something” usually takes the form of the child, friend, or caretaker taking care of the person until the person’s death.
But what if the person does not get around to writing a will or trust that states the child, friend, or caretaker gets some or all of the person’s assets after they die? Or, even worse, what if the promising person never intended to write a will or trust reflecting the promise to the child, friend, or caretaker? Can the child, friend, or caretaker enforce the now deceased person’s oral promise to give them assets? The answer is ‘yes’.
California law provides for the enforcement of oral promises to make a will or trust (California Probate Code § 21700(4) (5) by establishing that there was an agreement between the promising person and the child, friend, or caretaker that the promising person would leave some or all of their assets to the child, friend, or caretaker after they died.
However, before one can file a lawsuit based on a broken promise to make a will or trust, one must first file a “creditor’s claim” in the estate of the deceased person. Generally, a creditor must file a creditor’s claim within 4 months after letters issue or 60 days after the date notice of administration is mailed or personally delivered to the creditor. However, a potential creditor with actual notice of the pendency of estate proceedings cannot excuse the untimely filing of a creditor's claim on the ground that the administrator failed to send a formal 60 day notice of administration of the estate as required by Prob C § 9050; see Venturi v. Taylor (1995) 35 Cal.App.4th 16, 18.
Once a timely creditor claim is filed and served under the creditor's claim procedures, the 1-year statute of limitations period of CCP §366.2 is tolled until a formal rejection of the claim is served by the personal representative. Prob C §9352 (a). Once a formal rejection is served by the personal representative, the creditor has only 90 days to file suit to enforce the claim. Prob C §9353.
Please contact me if you are involved with the death of a person with or without a Will and especially of the deceased person had business interests. You can reach me by phone at (760) 989-4820 or through my online contact form. I handle probate matters in all California counties, including Southern California Counties, such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I also represent parties residing outside of California that have probate matters affecting real and/or personal property in California.
To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820.
Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.
Copyright © 2023, William K. Sweeney, Attorney at Law. All rights reserved. Unauthorized use and/or duplication of this material without express and written permission from this article’s author and/or owner is strictly prohibited.