July 27, 2021

Court Proceedings

When a party files a petition in probate court seeking redress of injury, e.g. breach of trust, the clerk will schedule a time for the initial hearing. For instance, if the petition is filed on July 27, 2021, the clerk might hypothetically assign a hearing date of February 14, 2022 (the current lead time in Santa Clara County is around 6 months for trust petitions).

A common misperception is that a judge will grant or deny the petition at this initial hearing. That is, the judge will resolve the case at the first hearing. Instead, the judge will typically ask the attorneys, if both sides are represented, if they've met and conferred on discovery issues. Discovery is the process in which evidence related to the case is exchanged between the parties. This initial hearing is typically brief, usually around 5 minutes or less. At the conclusion of the hearing, the judge will continue the matter to a future date to check-in on the discovery status. This will usually range from 30-120 days.

Another misperception regarding this initial hearing is that the court will hear live testimony from relevant witnesses. I've seen countless probate hearings where a large number of family members attended the initial hearing expecting to be heard by the judge. The judge will often let them testify, albeit briefly. I always tell my clients that attendance at a court hearing is an imprudent use of time. In particular, a client of mine has only been ordered to attend a court hearing one time. The reason for his mandatory attendance was because of a settlement conference that would take place at the courthouse, Marin County Superior Court. 

I should mention that a client's attendance at a trial is basically mandatory (or they risk losing the trial by default). This distinction between a routine court hearing and a trial is unfortunately not expressed clearly enough to the general public. For reasons unknown, parties come to court with the expectation that they "will have their day in court." While this statement is facially true, it is misleading. If a party so desires to have their day in court, they will, but not at the initial hearing. 

A prior case of mine can provide context to the foregoing. A wife passed away in 2018. The wife was survived by her husband. The sole probate asset was a home purchase by wife and husband while they were married. A daughter alleged that her mother wrote a will devising her mother's estate to the daughter and her siblings. The daughter repeated this allegation at multiple hearings and in multiple court filings while her mother's estate was being administered. Ultimately a trial was needed to determine whether or not wife passed away without a will. At the trial, the daughter was able to testify herself and provided witnesses to support her allegation. However, prior to the trial, the daughter's live testimony was not heard by the judge. The judge ultimately ruled that the wife passed away intestate as no valid will could be produced.