Common Mistakes Made in Probate Court: You’re not in Civil Court Anymore!

By        John A. Hartog &               Shirley L. Kovar

(This is part of our series of posts written by John A. Hartog of John A. Hartog, Inc. in Orinda, Calif., and Shirley L. Kovar of Henderson Caverly Pum Charney LLP, in San Diego, Calif., co-authors of the LexisNexis® Matthew Bender® Practice Guide titled California Trust Litigation (March 2011)).  In this post, both authors discuss the changing dynamics in trust law and litigation. Hartog and Kovar will be appearing at seminars and a webinar in the coming weeks.  For more information, please go to: www.ocbar.org and www.bansdc.org.     

      Filing in probate court is not necessarily complex, though there are nuances that will prevent your success, if not followed.  Below are some of the most common mistakes inexperienced lawyers make:

  • For the uninitiated, many file petitions as if they are complaints. Under probate court, every pleading must be verified which means signed by the party litigant under penalty of perjury. A complaint filed in civil court often includes everything but the "kitchen sink", since the complaint does not have to be verified. Taking this approach with pleadings in probate court is dangerous. If statements prove contrary in the pleading, they can come back during trial to undermine your case. Consequently, pleadings in probate court should never be all inclusive.
  • Civil litigation deals with the facts in disputes as does trust litigation. In trust litigation, however, the psychological and social factors should not be underestimated. Family matters make up the bulk of probate and trust work and involve emotional manipulation and exploitation of the vulnerable. Often, logic and common sense take a back seat, while the personal issues work themselves out. The biggest mistake inexperience lawyers make is jumping to a logical solution when the emotional drama has not yet played out.

Leading your client down the path while letting them draw some of their own conclusions is a smart strategy.  Clear heads unclouded by emotion leads to a better resolution for all parties.

  • When serving or providing notice in civil court lawyers can serve the opposing counsel and not necessarily the party. In probate court you can serve the attorney, but you must also serve the party.

  • Generally, most mistakes stem from a lack of familiarity with the substance of the law in this area. For example, in probate court it is the trustee who has the burden of proof to demonstrate the accuracy of an account. Many mistakenly assume it is the objector, which is not true.