DEMURRER
§ 44.) Probate Code sections 6401 and 6402 set forth who is an heir and what they are entitled to. A surviving spouse receives the decedent’s half of community and quasi-community property. (Prob. Code, § 6401(a) & (b).) However, the surviving spouse does not necessarily receive all of the decedent’s separate property. When a decedent leaves “a parent or parents or their issue or the issue of either of them,” the surviving spouse is entitled to only one-half of the separate property and the issue of the decedent’s parents (sister and nephew in this case) are entitled to a share. (Prob. Code, §§ 6401(c)(2)(B) and 6402.) Accordingly, if Decedent had died intestate (something not alleged in the petition), petitioner and Ada would properly be referred to as heirs.
The references to petitioner and Ada Hadidian as “heirs at law” is somewhat confusing because Decedent is not alleged to have died intestate. The references are not, however, superfluous, improper, or not in conformity with the law.
The motion to strike is DENIED.
Petitioner is directed to give notice.
Wolff - Trust DEMURRER (2026 – 01538290) Respondent Lori Gross’s Demurrer to Edward Wolff’s Petition to Invalidate the Ann Gloria Wolff Survivor’s Trust (ROA 34) is OVERRULED.
This action arises from a petition filed January 7, 2026 by Edward Allen Wolff (Petitioner) concerning the Ann Gloria Wolff Survivor’s Trust (Trust). The petition asserts a February 6, 2024 amendment to the Trust creates a “structural conflict” by naming respondent Lori Juergens Gross (Respondent) as both Trustee and primary beneficiary.
Respondent demurs to the petition on the ground it is time- barred under Probate Code section 16061.8.
“‘A general demurrer will lie where the complaint “has included allegations that clearly disclose some defense or bar to recovery.”’ [Citations.] A demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the pleading that are judicially noticeable. [Citations.] ‘To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action.’ [Citation.] The demurrer admits the truth of all material facts properly pleaded, including all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law.” (
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When a revocable trust becomes irrevocable upon the death of the settlor, the trustee must notify the beneficiaries of the trust and heirs of the deceased settlor. (Prob. Code, § 16061.7, subd. (a)(1) & (b).) The notification must contain certain information, including the following warning: “You must 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 delivered to you during that 120-day period, whichever is later.” (Prob.
Code, § 16061.7, subd. (h).) The warning must be “set out in a separate paragraph in not less than 10-point boldface type.” (Ibid.) When the warning is included in a properly served notice, recipient of that notice “shall not bring an action to contest the trust more than 120 days from the date the notification by the trustee is served.” (Prob. Code, §16061.8.)
Respondent’s demurrer is premised on her argument that she served a fully compliant notice on August 22, 2025, making the petition untimely. Respondent attaches a copy of the notice to the motion. The court cannot, however, judicially notice service of the notice attached as an exhibit to the demurrer. (Williams v. Wraxall (1995) 33 cAl.App.4th 120, 130, fn. 7 [a court “cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact”].)
Accordingly, the demurrer can only be sustained on the stated grounds if the petition discloses service of a fully compliant notice. The petition does not. Instead, it alleges Respondent failed to strictly comply with the statutory notice requirements. For purposes of a demurrer, the court must accept that assertion as true. “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”] (Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, 376, internal quotation marks and citations omitted.)
The demurrer is OVERRULED.
Petitioner is directed to give notice.