Trust & Probate Litigation Attorney

Getting Started in Probate Court

A loved one has passed away. In addition to the grief and challenges inherent in the situation, now you have to figure out how to handle their property. Who is supposed to get what? How does one go about formally inheriting property?
Although formal court proceedings are not required in all circumstances, many instances do require formal court proceedings. “Probate” is the formal court proceeding which addresses who gets what after a person passes away, and legally recognizing the appropriate transfers of property. In addition, disputes still often arise in instances in which property is supposed to transfer automatically to others without probate. Resolving these disputes will also often require formal intervention in the court system.

To get started, someone is going to have to file appropriate paperwork with the appropriate court. Many cases, especially in probate, have specialized forms which the parties are required to use. Sometimes forms are provided, but are optional. Some local courts have required forms which other local courts do not have. Sometimes, no form exists for the situation at hand, and a party has to draft their petition from scratch. Even just figuring out the appropriate paperwork to file can be a daunting task when also dealing with other issues from the passing of a loved one.

Most cases involving the assets left behind by a loved one will be addressed in “probate court”. Despite the common use of this term, there is technically no separate “probate court”. Each county has a Superior Court, which is then often divided into separate divisions or departments to address different types of cases. The term “probate court” actually refers to the probate division of a county’s superior court.

A probate division generally also has their own dedicated department in the court clerk’s office. The court clerk is responsible for organizing and processing the paperwork which is filed with the court, making sure the right paperwork gets assigned to the right case and sent to the right judge. This responsibility includes accepting the initial paperwork submitted to start a case and assigning it a case number. The “probate clerk”, then, fulfills this role for all cases involving the “probate court”. One must determine which county’s superior court is the appropriate court to file in, and care should be taken to submit one’s documents to the correct clerk at that superior court. This is especially true since not all cases involving the assets left behind by a loved one will necessarily involve the “probate court”.

To complicate issues even more, most cases generally need to be started with a summons submitted to the court clerk to issue for the case. The summons is the formal document which is served on the parties to litigation to let them know they are involved in the lawsuit. If your initial paperwork is submitted without a summons for the clerk to issue, they will often simply reject your paperwork. This can have serious consequences when there are time limits for filing something with the court. But observe, many cases in probate court do not require a formal summons. Instead, many probate cases have an alternative method of notifying the interested parties about the case, depending on the nature of their relationship to the decedent.

These are only a few of the issues involved in simply getting the matter in front of the court. When issues get more complicated, such as when parties do not all agree and the litigation becomes contentious, court procedures can be very complex. Moreover, many similar technical requirements apply when the parties are making legal arguments and submitting evidence to the court. David J. Hallstrom, Esq. and his trust and probate litigation team are here to help. We bring a broad base of experience and a global perspective to help you achieve effective, practical, and timely results.

Call David J. Hallstrom at (949) 450-8500 to schedule your consultation.
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DAVID J. HALLSTROM, ESQ.
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Defending Your Loved One's Legacy