Sep 30, 2020
Probate Court Update
Sep 30, 2020
By Paul Gruwell
MCBA’s probate and estate planning section hosted an extra meeting in September in order to learn the latest news from the probate court about operations during the pandemic. Section Co-Chair Timothy Barteau moderated an insightful question and answer session with Marin Superior Court’s Probate Judge, the Honorable Kelly V. Simmons, and the court’s Probate Examiner, Trudy Verzosa. The meeting featured questions on topics ranging from current court procedures to best practices for remote hearings to what to expect in coming months.
Probate Department Hearings
Probate hearings have resumed and are being conducted on Zoom in a manner similar to other civil hearings. The public can attend hearings through a special hyperlink for viewing and listening only. The link will be included at the beginning of tentative rulings, published on the court’s website on the court day prior to the hearing.
For the court’s regular calendar, usually called Monday mornings, the court provides a court reporter. For longer evidentiary hearings, the parties will need to provide their own court reporter (over Zoom), if desired.
Probate Examiner Notes and Tentative Rulings
In the past, the court postponed hearings if a petition was deficient. The court is now making efforts to keep matters on calendar, and Judge Simmons will discuss deficiencies with lawyers at the hearing.
For the next couple of months, the court may have difficulty keeping up because of extraordinary demands on the court’s resources, in particular the fact that Judge Simmons is currently assigned to handle the first criminal jury trial in the COVID-19 era, which is demanding much of her time through approximately the end of October. The probate department does not have staff attorneys to review filings. Instead, the probate examiner and Judge Simmons review them, and discuss each one prior to the tentative decisions being posted on Fridays. After the court catches up from the current backlog, its goal is to notify parties of procedural problems earlier.
In response to a request, Judge Simmons may instruct parties to appear at a more specific time during the morning calendar (e.g., 10:00 or 11:00) in the tentative rulings when feasible.
Ex Parte Application Procedures
The probate department is trying to align its ex parte procedures more closely with the civil and family law departments’. Currently, ex parte hearings are heard at the end of the calendar on Monday mornings. Ex parte applications need to be filed by 10:00 a.m. on the Friday before the hearing. If using the court’s drop box, they should be dropped off by close of business Thursday. Please include “ex parte” in the caption and specify the date and time of the hearing. Opposition papers may be presented at any time, including at the hearing. If submitted in advance, they may be emailed to the probate examiner. Deviations from these ex parte procedures due to exigent circumstances require court approval.
Other Procedural Issues
For discovery disputes, the probate department is utilizing discovery facilitators, just as in the civil department (and the court is seeking more volunteer discovery facilitators if you are interested in helping).
Settlement conferences are generally proceeding as calendared and are conducted remotely. If the parties at a conference reach a settlement, Judge Simmons can join the Zoom conference and voir dire everyone to put the settlement on the record.
Evidentiary Hearings: Tips and Suggestions
The biggest problems at hearings have involved documents. If you want to present documents, you must deliver them to the court and all parties a week before the hearing so that the court is assured that everyone is looking at the same documents. The court will not allow you to present documents by holding them up to a webcam. If a party is calling a witness who will be discussing documents, the witness should have a copy of the exhibit binder. Issues such as the timing for submission of exhibit lists and witness lists will be addressed at pre-trial conferences.
Delays with Records Department
The court has been advised that some parties have experienced delays that may relate to backlogs in the records department. Due to COVID-19, the records department is currently closed for in-person services. It is prioritizing requests from government agencies, law enforcement, and the public that relate to social security, immigration, military recruitment, and state licensing. The court will look into how delays with the records department may be impacting probate matters.
Estate Administration Deadlines
Generally, parties are still expected to file timely status reports of the administration of estates. If parties need more time, they may email the probate examiner to obtain an extension.
Petitions for Probate: Publication of Notice in Time for Hearing
Some attorneys expressed concern that on initial probate petitions, because of delays by the backlogged file clerks, by the time a filer receives the papers back from the court after a drop box filing, there is often insufficient time to complete notice through publication before the scheduled hearing. After discussion of the problem, Judge Simmons said that she will instruct the file clerks to file stamp petitions on the date the clerks are actually filing the petition, not the date it was dropped off, and schedule hearings accordingly. While this may introduce some delay, it will eliminate the risk that there will not be enough time for publication of notice before an initial hearing. The court has since confirmed that is what the clerks are doing. You are also free to request in the initial petition the additional 15 days provided under the law.
Local Rule Amendments
According to Judge Simmons, the local probate rules could use some “serious revamping.” The court has an extensive list of rules it wants to change and had intended to revise the rules this year. But given the challenges the probate department is currently addressing, this issue is now lower on the priority list. The court hopes to be able to turn to it next year.
The probate department is working diligently to issue meaningful tentative decisions and to have meaningful hearings. With the current backlog, and Judge Simmons’ ongoing criminal trial, conducting business will be challenging through at least the end of October or early November. It is possible that alternate judges may need to assist on probate matters on occasion during this time. Judge Simmons appreciates everyone’s patience and understanding as the probate department does its best under difficult circumstances.