A Key Probate Timing Rule: When Can You File a “Demurrer” in a Trust or Estate Case?

In court, timing rules can matter as much as (or more than) the underlying dispute. In Goebner v. Superior Court (2025) 110 Cal.App.5th 1105, the California Court of Appeal answered a practical question for trust and estate cases: how late is too late to file a “demurrer” (a request asking the court to dismiss a petition because it is legally defective) in probate court?

The key issue was whether the usual civil‑court rule—that the deadline to file a demurrer is within 30 days of service of the operative complaint or petition—also applies in probate and trust cases, or whether probate has a different (more flexible) provision. The Appellate Court determined that the Probate Code controls when it provides a rule—even if the rule is written broadly and looks less formal than standard civil‑procedure deadlines.

This article examines Goebner, traces the Court of Appeal’s statutory analysis, and explains why the decision matters for litigators navigating trust contests and other probate disputes where procedural timing can become dispositive.

Background: A Last Minute Attempt to Dismiss a Trust Challenge

The case started as a fight over changes to a trust. Thomas McDonald filed a petition claiming certain amendments to the Judith E. Stratos Trust were not valid. William Goebner opposed the challenge by filing a demurrer over four months after he was served—and only two days before the initial hearing on the petition—asking the court to throw out the petition on legal grounds.

McDonald objected, arguing the demurrer was too late under Code of Civil Procedure section 430.40, the standard civil‑case rule) because the demurrer was filed more than 30 days after Goebner was served with the petition.

The probate judge agreed with McDonald and refused to consider the demurrer, ruling it was filed too late—without deciding whether the demurrer had merit.

Goebner asked the Court of Appeal to step in right away (through a writ petition) and argued the probate court used the wrong timing rule. He pointed to Probate Code section 1043, which governs the timing of responses in a probate matter, and provides that an “interested person” can file a written response or objection “at or before the hearing.”

The Core Question: Which Deadline Applies in Probate Court?

The dispute turned on how two different laws fit together:

Code of Civil Procedure section 430.40 (the usual civil‑case rule), which generally requires a demurrer must be filed within 30 days after the petition/complaint is served; and
Probate Code section 1043, which says an interested person may file a written response or objection “at or before the hearing” on the petition.

McDonald’s point was straightforward: because the Probate Code does not specifically say “demurrer,” the normal Code of Civil Procedure deadline should apply.

However, the Court of Appeal disagreed and said the Probate Code comes first when it provides a rule—even if it uses broad language.

The Rule the Court Used: The Probate Code Rules First

The court started with Probate Code section 1000. In plain terms, it says: use ordinary Code of Civil Procedure rules and procedures in probate cases unless the Probate Code provides its own rule.

That one sentence essentially decided the case. The court found Probate Code section 1043 is an “applicable rule” because it governs when someone can file a written response or objection to a probate petition: any time up to (and including) the hearing.

The fact that section 1043 does not use the word “demurrer” did not matter. The court noted that, under the Code of Civil Procedure, a demurrer is simply a type of objection to a petition or complaint (see Code of Civil Procedure section 430.30).

Putting those statutes together, the court held that a demurrer counts as a “written objection” under Probate Code section 1043—so it is timely as long as it is filed at or before the hearing.

Why the Court Didn’t Use the Usual Code of Civil Procedure Deadline

The Court of Appeal was unpersuaded by McDonald’s argument that the Probate Code’s silence on demurrers required default application of the Code of Civil Procedure. To the contrary, the court held that probate pleading practice has long tolerated later‑filed objections precisely because probate matters are often resolved in hearings rather than through rigid pleading schedules.

The court also said it would be wrong to import the 30‑day deadline into probate court because that would effectively change Probate Code section 1043 from a flexible rule into a strict one—something only the Legislature can do.

The Other Arguments—and Why They Were Unsuccessful

The Court of Appeal rejected McDonald’s other points as well.

1. A Different Probate Rule for Will Contests Didn’t Change This Case

McDonald pointed to Probate Code section 8251, which has specific timing rules for demurrers in will contests, and argued that this showed the Legislature intended strict demurrer deadlines in probate matters.

The court disagreed. It explained that section 8251 is a special rule for will contests, not trust contests. If anything, the existence of a special probate deadline in one area supported the court’s view that probate timing rules come from the Probate Code—not from default Code of Civil Procedure rules.

2. The Court Was Not Concerned About “Unfair” or “Absurd” Results

McDonald also argued it is unfair and inefficient to allow a demurrer right before a hearing.

The court rejected that argument. It noted there was no legal authority requiring the stricter deadline, and it emphasized that the Legislature chose a flexible schedule for probate matters.

3. Courtesy Conversations Didn’t Waive Probate Code Rights

Finally, McDonald argued Goebner should not be allowed to rely on Probate Code section 1043 because Goebner’s lawyer had “met and conferred” (essentially, trying to work it out first) using civil‑procedure customs.

The court rejected that idea. Following civil‑procedure customs does not mean someone gives up rights granted by the Probate Code, and McDonald offered no authority showing otherwise.

The Bottom Line: File It by the Hearing

The Court of Appeal agreed with Goebner and told the probate court to undo its “too late” ruling and actually decide the demurrer on the merits.

In Goebner, the Court held:

In a trust contest in probate court, Probate Code section 1043 controls the timing for a demurrer; and
A demurrer is timely if it is filed at or before the hearing—even if it would be late under the usual 30‑day civil rule.

Why This Case Matters (Even If You’re Not a Procedure Nerd)

Goebner is a reminder that probate cases follow their own set of rules—and those rules can change the strategy (and outcome) of a case.

First, it underscores that probate procedure is not merely civil procedure in a different department. The Probate Code is its own procedural universe, and its rules must be followed even when they diverge from familiar civil practice norms. Second, the decision provides reassurance to litigants who may need additional time to analyze trust instruments, amendments, or factual allegations before deciding whether to challenge a petition on legal grounds. The Probate Code’s flexible framework allows substantive issues to be vetted without procedural forfeiture.

Third, don’t assume the other side has only 30 days to raise an early legal challenge. That assumption can backfire.

Key Takeaways: In Probate Court, the Probate Code Usually Wins

Goebner v. Superior Court confirms a simple point: if the Probate Code gives a timing rule, that rule controls in probate court. In probate and trust disputes, the court held that a demurrer counts as a “written objection” under Probate Code section 1043 and is timely if filed at or before the hearing—even though Code of Civil Procedure section 430.40 would normally require it to be filed within 30 days. The practical lesson is to avoid assuming Code of Civil Procedure deadlines automatically apply in probate matters.

In short: check the Probate Code first when you’re dealing with trust and estate disputes.

Have any questions?

The experienced probate attorneys at Keystone can help. Contact our firm today to learn how we can assist.

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