It is a standard requirement in Probate Court disputes that the parties strictly adhere to the rules regarding notice of relief sought to all potential heirs and beneficiaries. The recent decision of Bailey v. Bailey illustrates these rules over the discovery of a will after the issuance of letters testamentary.

A gateway issue in any trust and estate administration is the question of whether there will be a contest challenging the validity of any will or trust. The question of whether there will be a content is addressed through strict notice periods. The decision of Bailey v. Bailey specifically addresses the discovery of a will post-issuance of letters testamentary. The case does not involve
challenging a trust.

For a will, Probate Code section 8110 governs the administration of an estate and appointment of an administrator. Here, the administrator, the deceased’s brother, petitioned for letters of administration under Probate Code section 8226. This section governs the administration of an estate where there is no will. The deceased’s son received notice of the petition. But because there was no will the deceased’s son expected to be treated as an intestate beneficiary.

However, the facts relating to the estate changed after the petition. Shortly before the hearing, the deceased’s brother discovered a will. The deceased’s brother then lodged it with the court roughly two weeks before the hearing. At the hearing, the deceased’s brother represented he did not intend to admit the will to probate.

Yet, after the hearing the deceased’s brother provided “Notice to Potential Beneficiary of Petition for Letters of Administration Under Probate Code § 8226” on March 4, 2021. The notice included copies of the will, the petition, the probate order, and letters of administration.”

Then once a final inventory was filed the deceased’s son learned he stood to inherit nothing, and challenged the will. The deceased’s brother claimed the challenge was untimely based on Probate Code section 8226 subdivision (c). This section states that a will should be challenged 60 days after notice.

The Court of Appeals rejected the argument. The fundamental flaw in the deceased’s brother’s claim was that notice should have been provided before a hearing and not notice after a decision. Here, the issue decided was the appointment of an administrator for an estate without a will – not one governed by a will where the son was disinherited.

To trigger any deadline required that the deceased’s brother petition under Section 8110. The goal being to provide clear notice of the intentions and relief sought in the petition prior to any hearing. This would have provided each potential beneficiary with a copy of the will and afforded 15 days-advance notice prior to any hearing.

This case illustrates that as facts develop the probate code must be consulted regularly and that any petition must clearly state its intentions and provide sufficient notice to any potential heir or beneficiary. When there is a reasonable doubt over whether notice provisions have been satisfied it may warrant amending the petition and providing new notice.

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