Are Oral Promises to Make a California Trust or Will Enforceable?

William Sweeney

Is an oral promise to make a will or trust enforceable under California law? Contrary to what many believe, California law provides for the enforcement of oral promises to make a will or trust.

I have heard from persons who thought they were cheated out of an inheritance because there was no record of a written will. Instead, the alleged beneficiary had been told by the person, while they were living, that they would inherit a piece of jewelry, furniture or a car when the person died. Disputes involving oral bequests usually pertain to items of sentiment value, such as a family heirloom as opposed to a substantial asset. Nonetheless, people are apt to fight over these objectively inexpensive items because of their emotional attachment to them.

However, under certain conditions a promise to make a will or trust is treated differently. How does the promise to make a will or trust arise? For example, a person orally promises a child, a friend, or a caretaker some or all of their assets once they die, if the child, friend, or caretaker agrees to do something for the person. The "something" can be anything of value, but 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 didn’t 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 what if the 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 Probate Code § 21700, entitled "Contract to make will" has a provision that allows a person to establish an oral promise by establishing that there was an agreement between the person and the child, friend, or caretaker that the person would leave some or all of their assets to the child, friend, or caretaker after they died. But this is where it gets a bit tricky. The procedural hoops one must jump through to make an initial claim to enforce an oral promise to make a trust or will under California requires the following:

  • First, one has to pay attention to the applicable statute of limitations. The statute of limitations simply tells us how long we have to file a lawsuit to enforce an oral promise. The applicable statute of limitations for filing a lawsuit to enforce an oral promise to make a will or trust is one year from the date of death of the person. So if the person dies on January 1, 2014, then the child, friend, or caregiver would have one year (to December 31, 2014) to file an actual lawsuit to enforce the claim.
  • Second, it gets even trickier. Before one can file a lawsuit based on a broken promise to make a will or trust, one must file a "creditor’s claim" in the estate of the deceased person. The creditor’s claim is not difficult to complete and file, but if one fails to complete this step, and one year passes from the date of death of the person, one is very likely barred forever from filing an actual lawsuit to enforce the person’s promise.
  • Third, it’s still tricky. Each of these steps must be completed before one can have their day in court to prove a claim based on an oral promise to make a California will or trust. If the one-year statute of limitations (calculated from the deceased’s date of death) is blown for any reason, the claim to enforce the oral promise is barred forever from being heard. Thus, it’s very important for one to understand and meet the procedural loopholes required to make a claim to enforce an oral promise.

Consider the relatively recent case of Allen v. Stoddard (2012) 212 Cal.App.4th 807 which reinforces the above regarding filing a claim against an estate. The Allen court pointed out that California Probate Code § 9353 ("Section 9353"), which imposes a deadline of 90 days in which to file a lawsuit against an estate on a rejected creditor’s claim, and California Code of Civil Procedure § 366.3 ("Section 366.3"), which imposes a deadline of one year to enforce a claim against a decedent for breach of a promise or agreement relating to a distribution from an estate or trust, have conflicting requirements as to a claimant’s time to file a lawsuit regarding claims for breach of a promise to make a will.

The appellate court determined that, as the newer and more specific of the two statutes, Section 366.3, with its one-year-from-date-of-death deadline, trumped Section 9353’s 90-day-from-date-of-rejection deadline. Thus, in matters involving a breach of promise to make a will or distribution from a trust, where a timely filed claim has been filed and rejected, the deadline to file a lawsuit is not 90 days from the date of the claim’s rejection but one year from the date of death of the decedent.

What if nobody has opened the deceased person’s estate with the probate court? Can one simply wait until an estate is opened, whether that’s one or two years from now, and then file their creditor’s claim? The answer is very likely ‘no’. The applicable statute of limitations states that to enforce an oral promise to make a will or trust, a lawsuit must be filed within one year of the date of death of the person. So if the probate estate is not opened, then one needs to file a petition for probate to open the person’s estate with the probate court, file a creditor’s claim, and then file a lawsuit—all before the one year passes from the person’s date of death.

If you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, others spread across the state and interested parties outside California.

To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.