Here’s another chapter from my second probate book which likely will never be published. However, my first book is available on Amazon if you want to get it. Or I’ll send you a free PDF if you send me an email and ask for a copy!
Chapter 4 – Reasons for delays in probate
There are many reasons why a matter may be delayed. In my 20 years of practice I have seen a ton of ways that delays can happen. To counter that I have a number of policies and procedures in place to avoid those delays in my office. We pride ourselves on avoiding delays in probate court and hopefully after completing this book you too will be able to navigate the probate process efficiently.
First is the process. At my office we pride ourselves on efficient probate filings. I like to say that if you call me by noon we should be able to have your probate on file within 24 hours. That’s true. In some cases we can even do same day filing. As I constantly tell clients, “the sooner we start the process the sooner we can finish the process.” We continually focus on refining this process to make it more and more efficient. Get it started, get it filed and get your court date! For example, at the same time I begin working on your probate documents I put in a request to my bookkeeper to write a check for the court filing fees. I don’t want a delay to occur due to something as simple as needing a check. Beyond that our court courier comes to our office twice a day and serves all the local counties. When that doesn’t work we use email, fax, FedEx, E-filing, and all other means necessary to make your probate start quickly! Think about these things when you file your probate to keep it moving and always remember that the sooner you start the sooner you will finish!
The above deals with processes. Since you are most likely not a probate attorney a lot of these cases that section of ideas may not be as relevant for you. However, read carefully what I write next. The most common reason for delays at probate court is simply unfamiliarity with the probate forms. Yes, the California probate process primarily utilizes state forms called Judicial Council Forms. They were developed by the Judicial Council of California and have been updated and modernized over the years. The Judicial Council meets several times a year to discuss changes. Even simply using last year’s form can cause a delay as many court’s require the use of the latest and most current form. Thus verifying you have the latest forms is crucial. The date is typically listed on the bottom left of each form. You then need to verify on the Judicial Council website that it is the current version. As a probate law firm we subscribe to a service which sends us updates any time there is a change of forms that are required to be used. When using forms on the internet you may not get that lucky so be careful.
So having the right form is crucial but then the key is filling out the right sections. Having completed these forms hundreds of times I can envision each question in my head. I go through each question with my clients and make sure each one is completed correctly and that my client understands it. You can not simply leave a question unanswered because you do not understand it. You must complete every single question unless it specifically says otherwise. Take each question in the probate petition slowly and think about what you are answering. In chapter ___ we will go through each question of the main probate petition in detail. I encourage you to read that chapter as you fill out your initial probate petition.
Another common reason for delays is problems with filing the documents. In some cases this can be a court clerk who makes a mistake but more often it’s failure to file the right documents. Does the court require one copy or two? That is, original plus one or original plus two? Check before you file as this can stop your petition dead in it’s track!
Along these lines are local rules. Be ready to be frustrated as I type the next sentence. There are written local rules which are available on the internet for each county in California… and there are unwritten rules and procedures in many counties. It is imperative that you read the written rules before you attempt to file your probate. Failure to comply with local rules will cause a delay and in most cases a refusal to file the documents. The unwritten rules and procedures are the more frustrating. In some cases it could be a court clerk that just doesn’t know what the rule is but in others it’s a real rule but it’s just not written anywhere. I guess you might call this “local custom.” Having filed so many probates in so many counties of California I can recite numerous instances of this. For example, does your court require that a blank notice of probate form (form #____ ) be filed with the probate petition or does it not have to be filed until the notice has actually been sent out to those who are entitled to notice!? Or does the court require you to contact them ahead to reserve a court date? There are numerous local rules; written and otherwise. After you review the written local rules call the clerk who files the documents and ask about the above and similar. In some rare cases one court clerk may have one procedure and the court clerk sitting 5 feet away does it differently; yes really!
Closely related to the above are fees. In approximately 2003 the state went to a “statewide unified fee schedule” for court filings. Almost immediately some counties were excluded from this and allowed to charge additional fees. So much for the word “unified.” Recently the issue has been if you have to pay a $35 court reporter fee in addition to your $435 filing fee. The counties seem to be about half and half on this fee. The best are the counties that charge the $35 court reporter fee but then don’t have an actual court reporter in the courtroom. I do not understand that one.
One of the greatest features in probate is calendar notes or tentative rulings. A majority of counties post these on-line for easy access. Some counties post them as much as 3 weeks before the court hearing. I reminisce to my first probate back in the mid 90’s. My aunt Mag was visiting for the day. She is an attorney who does some probate work. I was telling her about my first probate case. She asked if I checked the calendar notes at the Court. I had not. There really wasn’t an active internet at that point though. You know where we found the calendar notes? They posted them on the wall at the probate court. Back then the Sacramento probate court was downtown; across the street from the main courthouse. We walked over there, from my office, and photocopied my calendar notes for case #1. I soon learned about a dial in service where you could dial in, with your modem (remember those!?) to a special phone number. Once dialed in there was a Dos based system which relayed the calendar notes for your case.
Now it’s a lot easier. In almost all counties they post them on the court website. In some counties they fax or email them to you. In other counties you just show up in Court and hope you got it right. Obviously after 20 years we don’t do as much hope and generally go in feeling pretty confident that our matters will be approved. You can increase the odds of your calendar notes being clear by closely following this book. Pay attention to the chapter about calendar notes, chapter __, and you will greatly increase the chances of your probate being successful.