The Law is Now Settled – Deadline to File a Demurrer in Probate Court is At or Before the Initial Hearing

By Sonal Imbulamure, Esq.

In Goebner v. Superior Court (Apr. 30, 2025, No. A171241) Cal.App.5th [2025 Cal. App. LEXIS 277] [Certified for Publication], the California Court of Appeal finally resolved a longstanding ambiguity in probate litigation: when must a demurrer to a probate petition be filed? The court held clearly and unequivocally—a demurrer must be filed at or before the initial hearing on the petition pursuant to Probate Code section 1043. Further, the 5-day meet-and-confer requirement for filing a demurrer applies based on the initial hearing date.

The Case: Background and Outcome

Thomas McDonald filed a petition under the Probate Code contesting last-minute amendments to the Judith E. Stratos 2000 Trust, which had removed him and his sister as beneficiaries and named William Goebner as the successor trustee. McDonald alleged undue influence, fraud, and financial elder abuse, seeking remedies under Probate Code sections 17200 and 850.

Although McDonald had served the petition in October 2023 and noticed a hearing for March 14, 2024, Goebner waited until two days before the hearing to file a demurrer. The trial court overruled it as untimely, relying on Code of Civil Procedure section 430.40, which generally requires a demurrer to be filed within 30 days of service. Goebner sought a writ of mandate, and the Court of Appeal reversed the trial court—holding that Probate Code section 1043, not Code of Civil Procedure section 430.40, governs timing in this context.

Resolving Confusion from Past Practice and Conflicting Interpretations

Before Goebner, probate practitioners were split in how they approached demurrers:

• Some calculated a 30-day deadline from the date of service—borrowing from civil procedure timelines.
• Others simply appeared at the initial hearing, orally objected, and later filed a written demurrer on or before a court-set deadline for objections.

This inconsistent practice stemmed in part from ambiguous precedent and the silence of the Probate Code on demurrer-specific procedures. In Dudek v. Dudek (2019), a demurrer filed three months after the petition’s filing date was  sustained, but the court did not analyze timing under the Probate Code, leaving uncertainty in its wake. Trial courts across the state adopted varying rules, sometimes applying civil timelines and other times allowing demurrers up to or at the hearing itself.

Goebner clarifies that Probate Code section 1043 is a “special rule” that supersedes general civil rules. Under section 1043, an “interested person may appear and make a response or objection in writing at or before the hearing.” The court interpreted a demurrer as a type of written “objection” encompassed by this language, making it timely so long as it is filed before or at the hearing.

Practical Implications for Clients and Counsel

This decision has important takeaways for trustees, beneficiaries, and fiduciaries involved in probate litigation:

1. Strict Timelines – A demurrer must be filed no later than the initial hearing date. Orally objecting at the initial hearing and filing a demurrer on a later “file by” date  is no longer acceptable.
2. Advance Planning Required – Counsel must initiate the required meet-and-confer process at least five days before the hearing date.
3. No Second Chances – Courts are not obligated to extend the objection deadline merely because counsel followed civil procedure timeframes. A demurrer filed even a few days after the hearing may be rejected as untimely.
4. Consistency Across Courts – The ruling ensures uniformity and predictability statewide, reducing client risk stemming from jurisdictional inconsistency.

Conclusion

The Court of Appeal’s decision in Goebner v. Superior Court definitively aligns probate demurrer timing with Probate Code section 1043. This change means attorneys representing trustees, beneficiaries, or other interested parties must prepare their written objections—demurrers included—by the date of the initial hearing. This decision brings much-needed clarity and finality to an area of probate practice that was previously murky and fragmented.

Clients navigating trust and estate disputes should consult counsel early, as waiting until a “file-by” date set after the hearing could now mean waiving the opportunity to demur altogether. The law is now settled, and a proactive strategy is more important than ever.

For more information, please get in touch with Sonal at simbulamure@tldlaw.com.