In order to open probate in California, the petitioner will need to file a petition in the appropriate superior court. The petition will allege various details about the decedent. For example, the petition will state when the decedent passed away, the decedent's residence when they passed away, what assets the decedent had, did the decedent have a will or not, which relatives survived the decedent, etc. The allegations found in the petition will be received as evidence if uncontested. Probate Code §1022.
However, if the petition is objected to, then the petition may not be received as evidence. Evangelho v Presoto (1998) 67 CA4th 615, 620. Instead an evidentiary hearing, essentially a trial, is needed to resolve the matter.
A recent unpublished appellate opinion focused on the appointment of a personal representative in what was ostensibly an uncontested matter.
"On August 24, 2021, M. Nicole Fore (Fore) filed a petition for probate for authorization to administer under the Independent Administration of Estates Act (the petition) in connection with Estate of Michael Derik Marxsen (decedent). According to the petition, decedent passed away on August 9, 2021, leaving a will dated August 4, 2021. The petition reflects that Fore was decedent's fiancée, and that appellant Sheryl L. Benevento (Benevento) is decedent's mother. On October 14, 2021, the court approved the petition, appointing Fore as administrator with will annexed and fixing a bond at $110,886. Letters of administration with will annexed were issued the next day.
Benevento's appeal is from the October 14, 2021 order appointing Fore as administrator with will annexed (the Order). Her appellate brief, however, does not identify or directly assert any claim of error by the probate court with respect to the issuance of the Order."
The crux of Ms. Benevento's appeal was that she did not timely file an objection to Ms. Fore's appointment as personal representative. A footnote describes this in detail:
"Under the heading "Statement of the Case" (capitalization omitted), Benevento states in her appellate brief that she and other family members appeared in court on October 14, 2021, "only to find [the case] was removed from the schedule since the presiding judge had made a ruling at 4pm on October 13, 2021." She does not argue in her appellate brief that the court erred in this respect. The record reflects that the court issued a tentative ruling on October 13 granting the petition, it received no objection by 4:00 p.m. that day, and that it therefore adopted the tentative ruling. (See Cal. Rules of Court, rule 3.1308(a)(1) [authorizing superior courts to adopt tentative ruling system under which, if a tentative ruling is posted "by no later than 3:00 p.m. the court day before the scheduled hearing. . . [and i]f the court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party's intention to appear"].)"
If Ms. Benevento had timely objected to Ms. Fore's appointment as personal representative, it is almost certain that Ms. Fore would not have been appointed personal representative on October 14, 2021. The reason being is that Ms. Fore's petition would have been contested and thus not be received as evidence per Evangelho. However, since Ms. Benevento did not timely file her objection, the court was obligated to receive Ms. Fore's petition as evidence and appointed Ms. Fore as personal representative on October 14, 2021.
Estate of Michael D. Marxsen, San Benito County Superior Court # PR 210006
