Notification By Trustee Sent 180 Days After Date Of Death.

[Beldene]

Hello, if the estate attorney tasked to send a Notification by

Trustee in California for the successor trustee sent it approximately 180 days after the date of death to the one beneficiary, is the successor trustee liable in any way because it was not sent within 60 days?

[Dugan]

Thanks for letting me know that California law applies.  

California Probate Code section 16061.9 provides:

(a) A trustee who fails to serve the notification by trustee as required by Section 16061.7 on a beneficiary shall be responsible for all damages, attorney's fees, and costs caused by the failure unless the trustee makes a  reasonably diligent effort to comply with that section.   

(b) A trustee who fails to serve the notification by trustee as required by Section 16061.7 on an heir who is not a beneficiary and whose identity is known to the trustee shall be responsible for all damages caused to the heir by the failure unless the trustee shows that the trustee made a reasonably diligent effort to comply with that section.  For purposes of this subdivision, "reasonably diligent effort" means that the trustee has sent notice by first-class mail to the heir at the heir's last mailing address actually known to the trustee.

So the responsibility for sending the notice is the trustee's, not the lawyers.  The trustee would be liable for all "damages, attorney's fees, and costs caused by the failure".  If there were no "damages, attorney's fees, or costs", then the trustee would not have anything for which s/he was liable(in other words, if the delay did not harm the beneficiary monetarily, then there are no monetary consequences to the trustee).

However, the section also says the trustee is only responsible if s/he was not "reasonably diligent".

I think there would be a good argument that the trustee hired a lawyer to do this & if the trustee checked in with the lawyer, then the trustee was "reasonably diligent".  If the court still found that the trustee was ultimately responsible, then the trustee would have a potential malpractice action against the lawyer for the lawyer's failure to perform services in a diligent manner.  There's a fairly short time period(statute of limitations) for bringing a malpractice action against a lawyer, so the trustee should seek immediate assistance with that if there's an issue(do NOT wait until the "damages" issue has been decided to bring the lawsuit against the lawyer!!!).

This information is not intended to substitute for professional legal advice and does not create an attorney-client relationship. You should accept legal advice only from a licensed legal professional with whom you have an attorney-client relationship.