2018 Review – Probate Division

Much will be the same. Much will be different.

Jill Fannin provided exceptional support to the Probate Division during her tenure as Presiding Judge. Barry Baskin, as incoming Presiding Judge, has the same commitment. Former Court Executive Officer Stephen H. Nash worked diligently to ensure the equitable sharing of the court’s meager financial resources among the divisions. Court Executive Officer Kate Bieker has maintained that effort.

The strength of the Probate Division will continue to rest in the capable hands of Courtroom Clerk Shannon Perry, Probate Examiners Linda Suppanich and Erica Gillies, Probate Facilitator Nicolas Vaca, and Principal Bailiff Matthew Ramos. They are unfailingly courteous and helpful to the probate community. Research Attorney Julie Woods is a relatively new member of the staff. She is a gifted attorney, thoroughly well versed in the nuances and intricacies of probate law. Together, the staff form a cohesive team that well serves our community. They do more, in less time, more effectively, than the staff that probate attorneys encounter elsewhere.

The Probate Division, however, will experience one significant loss effective January 15, 2019. Judge Susanne Fenstermacher will leave the division for a new assignment handling both civil and criminal matters. The Presiding Judge correctly recognizes that the management of the ever-increasing civil and criminal caseloads requires ongoing attention. Judge Fenstermacher will give the Presiding Judge additional flexibility to address demands in those areas affirmatively and effectively.

Due to the latter change, the Probate Division will no longer have a second designated department available for trial support. Although the development of a structured alternative may take time, two options likely will be pursued. First, some probate trials may be referred to the Master Calendar Department for assignment to any available Civil or Criminal Department. Second, the matters that Judge Fenstermacher formerly managed may be reassigned to any one of multiple departments, possibly throughout the county.

Attorneys who have handled probate trials in other counties will be familiar with these options. In some counties, civil and probate trials are assigned to any available department through a master calendaring system. That administrative precedent has been entirely workable. Attorneys will benefit from having a broader array of judges who may be able to preside over their trials on a more expedited basis. Attorneys will also benefit over time by having access to more judges who are familiar with probate matters.
Although the change in structure may pose challenges, I perceive that the probate attorneys will adjust capably to them. This perception in turn leads me to revisit an observation that I noted earlier on several occasions.

In criminal litigation, a major chasm separates prosecutors from public defenders or defense attorneys. In civil litigation, the division seems to be between plaintiffs’ attorneys and insurance defense attorneys. In labor law, the division is even clearer. But in probate practice, no such separation is evident.

Probate attorneys represent trustees, trust beneficiaries, and interested persons. They represent settlors, estate beneficiaries, and interested persons. They represent guardians, objectors, and minors. They represent conservators, objectors, and conservatees. In one proceeding they may represent one kind of interest and in another an opposing interest.

For probate attorneys, divisions based on the kinds of parties represented do not exist. This results in a particular courtroom dynamic in which attorneys are forced to think creatively and strategically, not just tactically. Opposing attorneys in one proceeding may well become aligned in another. They are not constrained by an artificial sense of “zero sum” negotiation or litigation. They thus are free, as they do in proceeding after proceeding, to work effectively toward achieving equitable results for all. For this, the attorneys of the Probate Section of our Contra Costa County Bar Association have earned my unqualified admiration.