One of the hardest things to understand for people who do not have experience with our judicial system is the amount of time it takes to resolve most matters in court.  Why the wait?  In part, it’s due to the backlog of cases in most courtrooms and the lack of funding these days to hire the necessary amount of judges and other court staff to process these cases.

But there is also a built-in delay in California Trust, Will, Probate and Estate cases, a concept known as due process.  “Due process of law” is the term for how we must administer cases in our system of justice.  Due process requires a certain procedure to take place before a court makes a binding decision in your case.  In other words, the court cannot simply look at the documents that are initially filed by each side and make a snap decision.  This is true even where the facts seem pretty clear-cut and the law directs a certain action based on those facts; or even where the opposing party’s objections are baseless or frivolous.

Before any binding decision is made by the court, the court must first conduct a trial where each side is given a fair chance to bring whatever relevant evidence they have to substantiate their case.  Once the evidence (both documents and testimony) is presented at trial, then the court can weigh the evidence and make a decision.  Note that in California, nearly all Trust, Will, Probate and Estate cases are decided by a judge alone, as opposed to a jury as used in all other type of civil cases and all criminal cases.

A typical life-cycle of a Trust and Will case begins with the filing of an initial petition (Trust and Will matters usually use “petitions” as opposed to “complaints,” but they are the same in that each is an initial document that kick-starts the lawsuit).  Once that petition is filed, it is set for an initial hearing.  The initial hearing IS NOT a trial.  It is simply the first chance the court has to review the petition and determine if everything is ready to proceed—we call this “being at issue.”  If notice of the petition is not properly served or the petition is defective in some other respect, then the petition is not “at issue” and the initial hearing will be continued to give the petitioning party time to correct the defects. 

Each petition filed with the Court in California Trust and Will matters is reviewed by a probate examiner (which is either a lawyer or paralegal employed by the Court) to determine if the petition is properly prepared from a procedural standpoint.  They don’t test the validity or weight of the facts that are stated in the petition, they just make sure all the technical requirements are met for a properly filed petition.

Once the Petition is “at issue,” the opposing party has the right to show-up at the hearing and make a verbal objection to the petition (see California Probate Code Section 1043(b)).  Once made, the opposing party is given a certain amount of time in which to file written objections.  Once all objections have been filed, then the Court will determine how much time is required by the parties to conduct discovery—which includes issuing subpoenas, requesting documents and questions from opposing parties, and conducting depositions.  There may be disputes regarding discovery along the way, which must be sorted out with various motions to the Court.  Once the parties have completed discovery (or are close to it), then the Court will finally set a trial date. 

It is only at trial that the Court receives evidence and then weighs the evidence to make a binding decision in the case. 

As you can see the process, from start to finish, can easily take anywhere from 1 to 5 years depending on the issues encountered, the number of discovery and other fights along the way, and the amount of evidence that must be collected.  All in the name of “due process.”