The Civil Litigator in the Probate World: Toto, I’ve Got a Feeling We’re Not in Kansas Anymore

Right off the bat, let me admit something: I am a rules guy! I love the rules and want them to be followed equally and without favor. Yes, of course, there can be special circumstances and even a bending from time to time.

Still, the civil litigator who first steps into probate litigation may have a bit of an awakening, as there are fundamental differences between the conduct of a case in probate versus the civil world. The rules are different and there are advantages that do not exist in the civil realm. The following are just a few examples of the potholes and advantages.

First, civil litigators have to understand the verification rules as they apply to probate pleadings. Simply put, Section 1020 of the California Probate Code requires that any petition, objection, response, report or account filed has to be in writing (that’s a no brainer) and must also be signed by the petitioners, objectors or respondents, or by the persons making the report or account, and filed with the court clerk.

Yes, that means that if you are objecting or responding to any pleading, your objection or response must also be verified even if you are just amending or supplementing your pleadings.¹ The verification can be executed by any one of the parties that you may represent, if you represent more than one, but somebody has to sign.²

An attorney can sign the verification if a petitioner, objector or respondent is “absent from the county” or if, “for some other cause,” is not able to sign or verify the petition, objection or response. There is the caveat that this is impermissible where the person on whose behalf the attorney is signing is a fiduciary appointed in the proceeding (i.e., the attorney for the estate may not sign and verify a petition, objection or response filed by the personal representative).³

However, there are some probate judges out there that have been known to express displeasure when the
pleading is verified by the attorney instead of the client. One axiom of civil practice is just as true in probate—know your judge.

The next thing of which you must be wary is who actually gets served with a copy of a court pleading (used in the broadest sense of the word). In the civil world, we are used to simply serving the attorneys representing the parties. However, in probate litigation, all manner of people may be entitled to get notice of whatever it is that you are filing.

The phrase “persons entitled to notice” carries with it all sorts of obligations to mail out pleadings to all manner of persons related to the case. The Golden Rule of Thumb (a terrible expression, I admit) is that you can never go wrong with serving everybody.

For example, if you are dealing with a trust, then all the persons named in the trust are required to be given notice of any action affecting the trust or trust administration. If there is a last will and testament under litigation then, as you most likely have guessed, every single person named in the will gets notice, no matter what the provisions may be as to any such persons.

Probate Code section 1206 provides that where notice is required to be given to known heirs or known devisees, notice shall be given to the heirs named in the petition for letters of administration and to any additional heirs who become known to the person giving the notice prior to the giving of the notice if the estate is intestate.

There is a better way for you to look at the notice issue and that is simply this—if there is anyone who
may take under a trust, a will or any other possible method under the estate, give that person notice. There are multiple sections of the Probate Code that can affect who should get notice as it relates to an estate. Save yourself the headache of not having your matter heard by making sure everyone is on notice.

So sisters, brothers, aunts, uncles, cousins, children, stepchildren, children you may think have been adopted and even children who may not have been born at the time. Yes, there is a section (Prob. Code § 249.5) that speaks to the issue of a child of a decedent conceived and born after the death of the decedent. The case Vernoff v. Astrue (2009) 568 F.3rd 1102, makes for very heady reading on the subject.

However, one of the real advantages of probate litigation is the ability to recover attorneys’ fees from the
estate. If your client is the trustee or personal representative, your attorneys’ fees can be reimbursable from the trust or estate so long as the fees were expended in a manner that benefitted the estate.

Nevertheless, this is not a Civil Code section 1717 situation. If you represent the beneficiary and you are bringing a lawsuit to enforce a trustee or fiduciary to obey the trust or estate document, you are not entitled to legal fees unless you are able to convince the court that Prob. Code section 17211(b) applies.

The statute provides that “[i]f a beneficiary contests the trustee’s account and the court determines that the trustee’s opposition to the contest was without reasonable cause and in bad faith (not an insurmountable standard, but not an easy one either), the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney’s fees, incurred to contest the account. The amount awarded shall be a charge against the compensation or other interest of the trustee in the trust” (emphasis and comment added).

All in all, working in Probate Court as a litigator is a wonderful experience, not unlike Dorothy entering Oz—a lot of familiar faces, but in a completely different setting. So when practicing in probate, remember to be mindful of a whole new world of rules.

[1] Prob. Code § 1021(a) (any petition, report, or account filed pursuant to the Probate Code or an objection or response to a petition, report or account must be verified).

[2] With the proviso that where there is a report or account made by the person with the duty to make the report or account, that person must sign the verification with the understanding that if there is more than one person who has that obligation, then verification may be made by any of them. Prob. Code § 1021(b)(2); see also California Rules of Court, Rule 7.103(b). And, yes, there is an entire section of the California Rules of Court applicable to Probate matters (Title 7) with my favorite rule, California Rules of Court Rule 7.4: “[t]he court for good cause may waive the application of the rules in this title in an individual case.”

[3] Prob. Code § 1023; see also California Rules of Court, Rule 7.103(c).