Many trustees are likely familiar with the duty to send out a notification by trustee under California Probate Code section 16061.7 upon a revocable trust becoming irrevocable or a change in trustee to an irrevocable trust. However, some trustees do it carelessly without following the strict requirements of statute. The consequences of failing to properly send out a notification by trustee may result (should result) in the 120-day notice period not coming into play.
A copy of the statute can be found by clicking on the link below: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=16001-17000&file=16060-16069
The statute requires specific terms be complied with under Probate Code section 16061.7(g). Otherwise, failure to comply with the terms presumably makes the notice defective under the statute. For example, the statute states all of the following shall be provided in the notice:
(1) The identity of the settlor or settlors of the trust and the date of execution of the trust instrument.
(2) The name, mailing address and telephone number of each trustee of the trust.
(3) The address of the physical location where the principal place of administration of the trust is located, pursuant to Section 17002.
(4) Any additional information that may be expressly required by the terms of the trust instrument.
(5) A notification that the recipient is entitled, upon reasonable request to the trustee, to receive from the trustee a true and complete copy of the terms of the trust.
This means that failure to include a trustee's phone number, failure to provide the proper address of the physical location of the trust administration under Probate Code section 17002, and any of the other requirements could force the trustee to start the process all over. Also problems can arise in regards to the "terms of the trust." The "terms of the trust" are in part defined by statute and in part undefined. Such "terms of the trust" can actually include more than just the trust document itself. Many people are not aware of the legal significance of this and the fact that failure to provide the "terms of the trust" violates the mandatory notice provisions of Probate Code section 16061.7.
Furthermore, under Probate Code section 16061.7(h) a specific statutory warning must be provided in certain circumstances. The warning must be set out in a separate paragraph in not less than 10-point boldface type, or a reasonable equivalent, that states:
"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 or 60 days from the date on which a copy of the terms of the trust is mailed or personally delivered to you during that 120-day period, whichever is later."
Trustees and beneficiaries with questions concerning such matters should hire experienced counsel well-versed in this specific area of practice, like the attorneys at Demiris & Moore.