A Litigator’s Lament in Probate: Why Am I Being Treated So Unfairly By A Court of Equity?

Imagine it: you’ve been practicing law for more than 15 years. You’ve completed a successful stint in the District Attorney’s office where you compiled an impressive 87% success rate at trial. You went to a big, downtown firm where you won 10 of 13 jury trials on behalf of both plaintiffs and defendants. Your clients think you are a miracle worker. You know your way around a courtroom and juries love you.

One day you receive a panicked call from a good friend. His mom just passed away and her long-time significant other is claiming the mother left everything to him – bank accounts, family heirlooms, and the family home. Your friend is concerned the significant other will borrow against the equity in the home, depleting the assets in his mother’s estate. Can you help? Sure . . . so you think.

You speak with a colleague who did “something” on his mother’s estate a few years back. With this rudimentary knowledge, you promptly draft a petition and take it with you on your next trip to court. You try to file it at the civil window, but the clerk tells you to go to the probate window. Probate? What is that? Where is that?

You serve the petition on the significant other. More than 60 days pass, and he doesn’t file a response to the petition. You draft a default and take it with you to court for the hearing on the petition. You are thinking this is almost too easy.

The court calls the case and some attorney appears for the significant other. He makes an oral objection to the petition. You wonder which turnip truck this guy fell off of and let the court know you have drafted a default and will file it before leaving the court. The judge chides you because the attorney just voiced an objection to the petition. But your honor, you object,it has been more than 60 days, nothing is on file, no one requested an extension to respond, and this attorney has not even appeared for the adverse party. Game over … isn’t it?

The judge looks at you, wondering what turnip truck you fell off of. The court orders the adverse counsel to file his objection filed within 30 days.

It is time to let this judge you are not a pushover. You ask the judge to set the matter for a jury trial at the earliest available date. The judge lowers the glasses on his nose and peers at you with a look of puzzlement. A jury? Counsel, there is no jury in probate court.

Your knees go soft. Your mind races … what about the rules? What about procedure? What about the Constitution?

Welcome to Probate Court, and welcome to equity.

Probate court is a court of general jurisdiction (Probate Code section 800), with the governing law and procedures set forth in the Probate Code. To the extent the Probate Code is silent on any specific issue, the rules of practice applicable to civil actions apply. (Probate Code section 1000.) For example, the Probate Code does not address discovery, so the Civil Discovery Act, Code of Civil Procedure section 2016.010 et seq., and the case law interpreting the Civil Discovery Act, apply in probate cases. And as our hypothetical practitioner friend discovered, the Probate Code does not provide a general right to a jury trial, unless expressly provided otherwise. (Probate Code sections 825, 1452, 17006.)

While a probate judge must certainly consider the controlling law in deciding a case, the Probate Court is also largely concerned with equity. More than once have I heard the court cite to the “Maxims of Jurisprudence,” Civil Code section 3509, in giving the decision of the court. (“For every wrong there is a remedy.” Civil Code section 3523.) This may come as quite a shock to the attorney who ordinarily practices in the civil courts and expects judges to enforce the deadlines, rules, and code-based restrictions.

Probate Courts, with their focus on equity and their different cultures, expectations, and traditions, can be a trap for even experienced litigators. Don’t wander into one assuming that your trial skills and your experience with the Code of Civil Procedure will equip you to succeed. Choose an attorney with Probate Court experience.

John Short

John Short is a senior counsel with Brown White & Osborn LLP, and focuses on probate and civil litigation
John Short