A question I get from nearly every successor trustee is whether they have to wait four months before selling. Usually their attorney has just mailed the formal trust notice with its bold warning about a 120-day deadline to contest the trust, and they assume the house is frozen until that clock runs out. It’s not, but whether you should wait is a real judgment call. This article walks through the rule, the risks, and how I help trustees decide. It’s part of my guide to selling a house in a trust after a death in Santa Clara County.
Key Takeaways
Summary: California gives beneficiaries 120 days to contest a trust after they receive notice, but nothing requires the trustee to wait that long before selling the house. Selling early makes sense when the family agrees and carrying costs are high, and written consent from the beneficiaries lowers the risk.
From my practice: The single best thing a trustee can do is open escrow early. On an inherited condo, the preliminary title report showed a week into the listing that the signed trust was missing. Because we found it before any buyer was involved, the family had time to track down pages of the original, and title accepted them four days later without a court petition. If that had surfaced in the middle of escrow, it could have ended the sale.
What the 120-Day Notice Is
When a living trust becomes irrevocable because the person who created it has died, the trustee must notify each beneficiary and each legal heir. The notice identifies the trust and the trustee, tells recipients they can request a copy of the trust terms, and includes a warning in bold type that they may not bring an action to contest the trust more than 120 days after the notice is served, or 60 days after they receive a requested copy of the trust, whichever is later. In practice that means the window can stretch to roughly six months if someone requests the trust late in the period. The notice must be sent within 60 days of the death, so the window often closes somewhere between month four and month six.
Can You Sell During the Window?
Yes. The contest period limits how long someone has to challenge the validity of the trust. It doesn’t suspend the trustee’s powers. If the trust gives the trustee authority to sell real estate, which nearly all do, the trustee can list and sell during the window. Title companies routinely insure trust sales in this period when the recorded affidavit and certification of trust are in order.
The risk isn’t that the sale gets undone. A buyer who purchased in good faith is generally protected. The risk is that a successful contest could change who the beneficiaries are, which could affect how the proceeds get distributed and could expose a trustee who acted hastily to criticism or liability. That’s why the decision is about the family, not about the law.
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When Selling Early Makes Sense
- Everyone agrees. The beneficiaries are the children, they get along, and nobody has any reason to challenge the trust.
- Carrying costs are high. A vacant Silicon Valley house can easily cost $2,000 to $5,000 a month in property tax, insurance, utilities, and maintenance, more if there’s a mortgage.
- A reverse mortgage is due. The lender will expect payoff on its own timeline, usually within six months with possible extensions.
- The house is at risk. Vacancy, deferred maintenance, or an insurer threatening to cancel coverage.
- Market timing. Spring in Santa Clara County is typically the strongest season, and waiting four months could mean listing in November instead of April.
When Waiting Makes Sense
- The trust was amended late in life, especially if it cut out a child or added a new beneficiary.
- There are questions about the parent’s capacity when the trust was signed.
- A family member has already threatened to challenge it.
- There are legal heirs who aren’t beneficiaries, such as a child left out of the trust.
- The trustee is also a major beneficiary and wants to avoid any appearance of rushing.
A real example: On an estate house I sold for three heirs, the owner had passed away earlier that year, and the house still held decades of belongings. We signed the listing in July but held the home off the MLS while I managed five weeks of clearing, paint and small repairs, then launched in September at $1,250,000. It was under contract in a week at $1,260,001, as-is with no inspection or appraisal contingency, and closed 30 days after listing. The prep a house like that needs often lines up with the waiting periods in a trust administration, so the time isn’t wasted.
A Middle Path I Use Often
In many cases the best answer is to use the window productively rather than either rushing or waiting idly. The cleanout, estate sale, pre-listing inspection, and preparation often take six to ten weeks anyway. Listing around month three and closing around month four or five lines up the close with the end of the contest period in many cases. When the trustee does want to close early, getting a simple written consent to the sale from each beneficiary, prepared by the trust attorney, gives everyone clarity and the trustee some protection.
Holding Back a Reserve
Even when the sale closes during the window, the trustee doesn’t have to distribute the proceeds right away. Keeping the net proceeds in the trust account until the contest period has passed, and until the trust’s tax situation is clear, is a common and sensible approach. It lets the sale happen on the best market timing while protecting the trustee if a challenge does materialize. For the full sale process, see my guide to selling a house in a trust after a death in Santa Clara County, and for the trustee’s broader obligations, see successor trustee duties when selling a house.
Sources and Further Reading
- California Probate Code § 16061.7 (trustee notification)
- California Probate Code § 16061.8 (120-day contest period)
- California Probate Code § 850 (petitions involving property, including Heggstad petitions)
- IRS Publication 551, Basis of Assets
- California State Board of Equalization: Change in Ownership FAQ
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Frequently Asked Questions
Do you have to wait 120 days to sell a house in a trust in California?
No. The 120-day period limits how long someone has to contest the trust. It doesn’t prevent a trustee with the power to sell from selling the house during that time.
When does the 120-day trust contest period start?
It starts when the trustee serves the notice required by Probate Code section 16061.7, which must be sent within 60 days after the trust becomes irrevocable. It can extend to 60 days after a recipient receives a requested copy of the trust.
Can a trust contest undo a home sale?
A buyer who purchased in good faith is generally protected. A successful contest is more likely to affect how the sale proceeds are distributed than the sale itself.
Should a trustee distribute sale proceeds during the contest period?
Many trustees hold the proceeds in the trust account until the contest period has passed and the tax picture is clear, which protects the trustee if a challenge arises.
Can beneficiaries consent to an early sale?
Yes. Written consent from each beneficiary, prepared with the trust attorney, is a common way to reduce the risk of selling during the contest period.
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