banner

WHAT TO EXPECT WHEN YOU’RE EXPECTING…. …..PROBATE LITIGATION (PART 2)

This section applies to probate litigation cases filed in Orange and Los Angeles counties. The timelines below are roughly the same for both counties, though Orange County does seem to move a bit more quickly than Los Angeles County.

•           Filing the Petition: Probate litigation begins with the filing of a petition. This begins with a fact-intensive conversation with the client. The client must tell the attorney all the facts upon which the petition will be based. In other words, all the bad stuff their family member has done in the past, or continues to do. The attorney will then take these facts and draft a petition to file with the court. All petitions have strict notice requirements. All probate petitions and objections must be verified by the client. (See California Probate Code §§1020, 1021.)

•           What Happens Next? After the petition is filed, the court will set an initial hearing date. That initial hearing date will be anywhere from three to six months from the date of filing. At the first hearing, nothing will happen! The court will almost certainly continue the case, for several different reasons.

•           Clearing the Notes: Prior to the hearing, the court will post “probate notes” online. These notes will refer to deficiencies in the pleadings. The deficiencies must be corrected before the case can move forward. This is known as “clearing the notes.” Often one will run into counsel who will fail to clear their notes, even after several continuances. This can be the result of a lazy or inattentive counsel, or it can be a deliberate tactic to delay the proceedings. There can be several continuances, lasting several months, just to clear the notes.

•           Objections: Probate litigation differs from standard civil litigation as to when the petition must be responded to. In civil litigation, the defendant has 30 days from the date they were served with the complaint to respond to it. If they fail to do so, the plaintiff may take a default against them. Not so in probate world. In probate court, the respondent has up to and including the date of the initial hearing to object to the petition. In fact, the respondent can show up on the day of the petition and object orally. (See California Probate Code §1043) If that happens, the court will set a date, usually 30-60 days out, by which written objections must be filed.

•           Challenges to the Pleadings: Probate court is similar to civil court in one respect. Respondents can bring the same challenges to the pleadings as civil litigants, the main one being a demurrer. In short, a demurrer asks the court to deny the petition, because on its face it does not state a legally cognizable cause of action. Typically, if the court grants the demurrer, it will give the petitioner leave to amend to correct the defect. After the petition is amended, the respondent may choose to file objections, or may decide to demur again. All these tactics serve to delay the cases even further.

•           Trial Dates. After the pleadings are “at issue,” meaning that all the notes have been cleared, and the objections have been properly filed, the court will set a trial date. Alternatively, the court may set a “trial setting conference,” at which a trial date will be set. When the date is set depends on many factors, including how long it has been since the case was filed, the anticipated length of the trial, the court’s availability, and the availability of counsel and the litigants. In Orange County, the judge will set a “Mandatory Settlement Conference” before the trial. At this “MSC” the parties and their attorneys will meet at the courthouse, where a settlement judge will be assigned. The judge will act as a mediator, will discuss the issues with the parties, and attempt to reach a resolution.

•           What Happens While the Case is Being Delayed? Just because there are “notes to clear,” or demurrers pending does not mean nothing is happening on the case. As the case is working its way through the courts, and even during the time period between filing and the first hearing, discovery should be taking place. Discovery devices include sending written questions to the other side, requesting that the other side produce documents they have that are relevant to the case, taking depositions of parties to the case and third parties, and issuing subpoenas for relevant documents, often to medical providers and financial institutions.

•           Mediation. At some point during the case, the parties are likely to mediate. Sometimes the court will order mediation, and other times the parties will agree to do it. Los Angeles Superior Court offers a free probate mediation program at the courthouse. Otherwise, the parties can opt for private mediation. There are many good providers, but most can get very expensive. A full day of mediation can cost anywhere from $5,000 to $10,000, usually split among the parties. The mediator is a retired judge or a retired lawyer with experience in probate litigation matters. The mediator will go back and forth between the two parties, listen to each side’s issues, and attempt to broker a resolution. Even considering the cost of the mediator, a mediation is almost always a less expensive alternative to trial.

•           Winning the case: a common misconception about probate litigation is that the judge will make a decision at the “regular” hearings. This is rarely the case. A judge will typically make a substantive decision only if there is a total absence of objections. In other words, if the respondent makes no response or appearance whatsoever, the court will approve the petition. Much like a civil complaint, a probate petition contains “allegations of fact” that must be proven in court before a decision can be rendered. This requires a trial, like any other case, with witnesses, exhibits, and at times even experts. Typically probate trials are “court trials” which means a judge decides the case, rather than a jury.

•           How Can I Make Something Happen? A litigant with an emergency situation (and who is sick of waiting for the process to unfold) can go in “ex parte.” This is a procedure where, if notice is given before 10:00 am, a party can go into court the next day. In Los Angeles Superior Court, the judge will typically make a ruling only on the paperwork that is filed. It is rare, but not unheard of, to actually speak with a judge on an ex parte hearing. Another thing a judge might do is review the paperwork, make no ruling, but set a hearing on the matter anywhere from 7 to 30 days out. This is often much better than waiting six months for the “regular” hearing!

To win an ex parte, one must demonstrate to the judge that there is a true emergency, or that “irreparable harm” will result if the ex parte petition is not granted.

Conclusion

The entire probate litigation process can take anywhere from six months (which would be very short) to two years, or in some cases even longer. The probate litigation process can be extremely complicated and overwhelming. Anyone thinking of initiating the process, or who has been served with a petition should contact an experienced attorney immediately. Often, an experienced attorney can work with the other side and reach a resolution without having to resort to litigation.

By: Brian Ramsey bramsey@tldlaw.com

Terms and Conditions Disclaimer Privacy Policy