Please remember you can get my first probate book on Amazon. This is from my second probate book which I have determined will never be finished. I think this is one of my most important chapters and contains stuff I have seen nowhere else on the web!
Chapter 10 – Calendar Notes in Probate Court
Not all probate courts use the exact same system but I have seen it in many. RFA stands for “recommended for approval.” This means that the probate file examiner has reviewed your case and advises the Judge to approve it based on their review. The letters RFA, spelled out words, or some similar notation will be found on your calendar notes or tentative ruling if you did everything right so far in the process. I have to say it makes me smile when I see an “RFA” or “Pre-approved” or similar on my cases.
The bigger issue is if your calendar notes do not say RFA then what do you do? Can you fix the problem oraly in Court? Can you email the court’s file examiner and explain to them? Should you amend your petition? Or file a supplement? Who signs the document?
Before going into each of these options I remember the first time I went to look for my case’s calendar notes. My aunt was in town and she is an attorney. She taught me about calendar notes. You know how we checked calendar notes in the mid 90’s? Brace yourself for this one… we walked over to the probate court, which was in downtown Sacramento at the time, and went to a bulliten board. On that board they had the upcoming matters. We would then copy our case’s notes on the copy machine. About that time they added a dial-in service where you could dial into a DOS based system to check your notes. In some counties then, and now, there was a pre-recorded message you could call into to hear notes. Now days, of course, most court’s have their calendar notes on-line. In most counties there is a highly automated system for checking to see how your case is doing. Some counties post 3 weeks before the court date, some a few days before, many the day before, and a few of the smaller counties still have no preview. For those last few you just have to appear in court and hope you did it right!
So how do you fix your calendar notes or tentative ruling if it’s not right? That is, if the court notes a deficiency then what do you do? Let’s go through a few options. It should be noted that which option to use depends on the court and the notes you are looking at. For more basic notes a response or maybe a supplement will work. If there are significant problems then an amended petition may be required. Lastly, in a few situations an oral statement to the Judge will work but I personally do not like to rely on that option because if it doesn’t work you are likely looking at a 4-8 week delay.
1) Response to Calendar Notes: When I do a response to calendar notes I lay out each note and give a reply. I have included a few examples at Exhibit __ – 1. I try to answer each calendar note even if the issue has been resolved. For example, in some counties they publish notes within a week or two of filing the petition. At that point you will not have completed your publication and filed the certificate of proof of publication. Also, you may not have filed your proof of service showing that notice of petition has been sent to interested parties. This is because the notice just needs to go out 15 days before the hearing. There is thus not an urgency to send it right away. So, if I have simple notes like that I might do a reply in this format:
NOTE 1: Proof of Publication needed
REPLY TO NOTE 1: Publication has been completed and proof filed in Court. Attached to this response is a copy of the filed proof of publication.
NOTE 2: Proof of Service to interested parties needed
REPLY TO NOTE 2: Notice has been sent to interested parties and the proof of service was filed with the Court. Attached to this response is a copy of the filed proof of service.
If the issues are that simple then the attorney can sign it because the attorney is just clearing up some administrative issues for the court. If there are more substantive issues then the Petitioner should sign with a verification under the penalty of perjury.
2) Supplement to Petition: I use a supplement to a petition when there is something missing in the petition or new information has been learned since filing. The supplement might indicate that a certain paragraph of the petition should read as follows. Each number on the probate petition form is a separate “paragraph.” In many cases it is attachment 8 that we revise because we learn of a new family member, a new name, a new address, etc…. We then would file a “supplement” stating that the attached attachment 8 should replace the one filed with the original petition. Since a supplement is changing the petition the petitioner should sign it under the penalty of perjury just like the original petition.
3) Amended Petition: I try to never use an amended petition. In fact, the only time I typically do this if my client failed to tell me a significant bit of information like a recent client who told me that her husband did have a will but she hadn’t given it to me. Changing from a probate with no will to a probate of a will is a significant change and I do not think a response or a supplement will work. You need a full blown amended petition. This will likely cause a new filing fee in Court and in many cases a new publication will be required. The other time I have used an amended petition is when taking over a case from someone who had tried to do the probate themselves or with an inexperienced attorney. Sometimes that first petition is done so poorly that an amended petition is needed to clean the deck and start fresh. Of course the Petitioner needs to sign the amended petition.
4) Oral statement to the court: Of all options for replying to calendar notes this is the simplest and, by far, the most risky. If the Judge prefers to have something in writing she could continue the matter 4 weeks, or more, for you to file something in writing. That is why I never rely on this. I always put my responses in writing so the Court has a clean record. However, in some small counties and in most counties for really simple items the oral statement in Court can work. In my opinion this is the last choice and really should not be used; I leave it for the lazy attorney to use!
Please remember the point of replying to calendar notes is to provide a clean court file so that the Judge can approve your petition. Make it easy for the Judge to give you what you want. Put it in writing!