Open the Doorto Discovery

In California, due the rules of civil procedure apply to probate matters? The short answer is yes. Under California Probate Code section 1000, the Code of Civil Procedure applies to all probate matters to the extent the Probate Code does not provide an alternative procedure. Specifically, the code states:

Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions.

This allows you to use all types of discovery techniques when litigating a Trust or Will matter. For example, you can request documents, ask written questions, request admissions, take depositions, and subpoena documents from third-party witnesses. It really is no different from the techniques used in a regular civil lawsuit.

You also have civil motions at your disposal, things like demurrers, motions to strike, motions for judgment on the pleadings, and motions for summary judgment. You may not necessarily win any of these motions, but they can be brought in a probate court matter.

Unless, of course, your assigned probate judge disagrees with their use. Unfortunately, there are a few probate court judges out there who disfavor the use of things like demurrers and motions for summary judgment, event though the California Probate Code specifically authorizes their use. And since judges have wide latitude in handling the procedural part of any lawsuit, they have discretion to allow or disallow such a filing. But a majority of probate court judges will allow civil motions and other types of civil filings, which allow you to handle a probate matter similarly to how any other civil lawsuit is managed.

So don’t wait when you have a trust or will lawsuit; start your discovery and get some answers!