Options when your court date is WAY out

What can you do when your California probate court date is way out?  By WAY OUT I mean way out in the future.  Let me backtrack a little first….

In the old days, when I was a young attorney, court dates were often given 4 weeks out from the date you filed your petition. Back in the mid-nineties I would file a probate petition and my court date would be about 4, maybe 5, weeks out. As time went on, and in particular after some court staffing issues in the mid-2000’s, 6 weeks became the standard and occasionally longer during the worst of the staffing issues. We have been pretty solid with 6 weeks as the norm in most courts. There are a few courts that occasionally go long but 6 weeks is probably the majority or median in my experience. I should add that I file petitions in probate courts throughout California so have pretty significant experience filing matters in probate courts throughout the state of California.

Now Covid hit and the world has gone wonky!  I blogged recently about a petition I filed back in March or April and the court gave me a court date in October. I was sort of shocked. Out of thousands of probate petitions that was the furthest out in the future I had ever heard of.  Well, guess what?  That same court has created a new record that I hope will never be beaten.

I have shared it with a few probate attorney friends for laughs because it is so ridiculous. The court filed it July 10, 2020 and gave my client a court date of June 23, 2021. Let me repeat TWENTY TWENTY-ONE!  Approximately ONE YEAR in the future. Remember above I talked about 6 weeks well this court has now given me a court date 11.5 months in the future! ARE YOU JOKING?  IS THIS A MISTAKE?

I am trying to reach my client by phone as I want to tell him gently! His parents died and he wants to wrap up their probate and get on with his life. However, the final probate petition has been set almost one year in the future. In this particular case it’s extra complicated as the only asset is his parent’s house and he wants to re-finance the house to pay off a reverse mortgage.  It’s almost impossible to re-finance a house during probate. At least it’s impossible to get a conventional loan through a re-fi in probate. There are hard money lenders, or other private lenders, but they tend to be more expensive loans in terms of points, fees, and interest. So what can my client do?

The first option, and I suspect one that a lot of people will do is file for an order shortening time. It’s too bad as this will just waste my client’s money, my time, and the court’s time but we will very likely file for an order shortening time. That is an ex parte petition asking the court to hear the case sooner than a year from now. Our rationale will be explaining about the desire to do the re-fi. I really have no clue if the court will honor this but we can ask.

A second option, in this particular case, is my client can possibly purchase the house from the probate estate. This was already a possible option but it’s not simple either. In a case where the personal representative wants to purchase the house during probate it requires court approval. Well, we are back to square one with court approval. However, maybe someone he knows can purchase the house!? In this case my client is an only child and is the only person affected by his action so it’s just a matter of coming up with a way to LEGALLY get around a broken system.

The third option is to sit tight and wait a year. That’s not a great option though. My client wants to get on with his life and for a court to hold him up like this is really criminal in my opinion.

-John Palley


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