Local Probate Rules of Court

PROBATE RULE 1 ADMINISTRATION AND GENERAL POLICIES

A. VENUE
B. CONSOLIDATION
C. PROBATE CALENDAR
D. TELEPHONIC APPEARANCE
E. DEADLINE FOR SUBMITTING PROPOSED ORDERS IN UNCONTESTED MATTERS
F. OBJECTIONS
G. CONTESTED MATTERS
H. APPROVED MATTERS
I. CONTINUANCES
J. APPOINTMENTS
K. WITHDRAWAL OF ATTORNEY OF RECORD
L. COURT COMMUNICATION REGARDING RESTRAINING ORDERS

A. VENUE

All probate proceedings in Santa Clara County must be filed in the Probate Department of the Santa Clara County Superior Court, located at 191 N. First Street, San Jose, CA 95113.

B. CONSOLIDATION

Whenever it appears that two or more petitions with different case numbers have been filed with reference to the same decedent, conservatee, minor, or trustee, the Court will consolidate all of the matters with the matter bearing the lowest number.

(Eff. 7/01/08)

C. PROBATE CALENDAR

Probate cases are heard at 9:00 a.m. Monday, Wednesday, Thursday, and Friday, in the Probate Department, except for petitions to appoint guardians and to terminate guardianships prior to the age of majority, which are heard at 9:00 a.m. on Tuesday, and petitions to appoint conservators and to terminate conservatorships prior to the death of the conservatee, which are heard at 1:30 p.m. on Tuesday.

(Eff. 1/01/07)

Parties are required to reserve a hearing date by calling the Probate Calendar Secretary prior to the filing of the petition. In order to file a new matter, a party must obtain a case number and hearing date from the Probate Calendar Secretary.

(Eff. 7/01/02)

D. TELEPHONIC APPEARANCE

(1) Telephonic appearances on the Probate Calendar are governed by California Rule of Court (CRC) 3.670.

(2) Telephonic appearances must be coordinated in advance by counsel or a self-represented party through an independent vendor, currently CourtCall (888-88-COURT)

(3) Telephonic appearances are not permitted for initial conservatorship or guardianship appointments, petitions for temporary restraining orders (including elder abuse cases), or petitions to confirm the sale of real property.

(Eff. 1/1/08)

E. DEADLINE FOR SUBMITTING PROPOSED ORDERS IN UNCONTESTED MATTERS

In all matters where no objections are on file, the petitioning party must submit a proposed order not later than four (4) court days in advance of the scheduled hearing date or the matter may be ordered off calendar.

F. OBJECTIONS

Objections to any petition may be made orally at the noticed hearing. Unless the Probate Code requires written objections, the Court may hear the oral objections at the noticed hearing, or the Court may require the objections to be in writing. The Court would prefer that objections be filed at least two court days prior to the hearing date. If written objections are required by statute or by the Court, the Court will continue the hearing to allow the objecting party time to file and serve such written objections. The Court may in its discretion set dates for the filing of written objections and responses thereto. Failure to file and serve such written objections before the date set may be grounds for overruling the objections. The following are local forms which may be used to object to the matters indicated:

(1) Objection to Petition to Remove Conservator (attached form PB-4035)

(2) Objection to Petition to Remove Guardian (attached form PB-4036)

(3) Objection to Petition to Remove Personal Representative (attached form PB-4037)

(4) Objection to Petition to Remove Trustee (attached form PB-4038)

(Eff. 1/1/08)

G. CONTESTED MATTERS

At-issue, contested matters that are ready for hearing and that parties will submit on the pleadings without oral argument will be taken under submission. At-issue, contested matters that are ready for hearing and for which the total hearing time does not exceed one day may be heard in the Probate Department on the date noticed or a continued hearing date. The setting or assignment of all other contested matters including the assignment of cases to the master trial calendar will be made by the probate judge.

(Eff. 1/1/07)

H. APPROVED MATTERS

Approved matters are those that have been reviewed and found complete before the date set for hearing. Personal appearance by parties is not required on approved matters. A list of approved matters is posted at the door of the probate courtroom at the time of the hearing. Interested parties may call (408) 882-2100 x2650, to hear a recording with a list of pre-approved matters for the following day's calendar, or may consult the preapproved list on the Court's website at www.sccsuperiorcourt.org/probate. Approved matters for which objections are made at the hearing may be continued. There is no pre-approved calendar for appointment of a guardian or a conservator.

(Eff. 1/1/07)

All probate orders will be signed immediately after the calling of the probate calendar. Parties may pick up their orders at that time.

I. CONTINUANCES

On the call of the calendar, a matter may be continued for such period as the Court in its sole discretion will determine if a party personally appears on the hearing date and requests a continuance.

(Eff. 1/1/08)

A continuance will be granted without the need for a court appearance only if all parties agree. The request may be made by a telephone call to the Probate Examiner's Office The Court may deny any continuance request.

(Eff. 1/1/08)

J. APPOINTMENTS

If in any matter a party believes a conference with the Probate Examiner or the Probate Staff Attorney would be appropriate, an advance appointment should be made with the Probate Examiner's office (408-882-2100) x2668.

K. WITHDRAWAL OF ATTORNEY OF RECORD

Any attorney wishing to withdraw from a proceeding under the Probate Code as attorney of record whose client will not consent to sign a substitution of attorney may file a motion or petition seeking such relief and must follow the procedures and use the Judicial Council forms specified in CRC 3.1362.

(Eff. 7/1/07)

The court does not favor the substitution of conservator, executor, administrator, guardian or trustee in propria persona in lieu of attorney of record, unless it is clearly shown that the person acting in propria persona is able to perform the necessary duties and file necessary documents without legal representation.

L. COURT COMMUNICATION REGARDING RESTRAINING ORDERS

(1) Procedure in Probate Court

a. Subject to available resources, the Family, Juvenile, and Probate Courts shall examine appropriate available databases for existing restraining or protective orders involving the same restrained and protected parties before issuing permanent CLETS Civil Restraining Orders. In the event that this information is not available to the judicial officer, inquiry shall be made of the parties before issuing permanent CLETS Civil Restraining Orders.

(b) Any order of the Family, Juvenile, or Probate Court that permits contact between a defendant/restrained person subject to either CLETS Civil Restraining Orders or Criminal Protective Orders and his or her children, shall contain specific language setting forth the time, day, place, and manner of the transfer of the children, including the safe exchange of the children, in accordance with §3100 of the Family Code. Such an order shall not contain language that conflicts with a Criminal Protective Order. Safety of all parties shall be the Court’s paramount concern. The Court or a Court-related agency may recommend safe and specific contact with the children and direct the defendant/restrained person and/or the victim/protected person to the process for modification of protective orders.

(2) Modification of Criminal Protective Orders

(a) Any Court responsible for issuing custody or visitation orders involving minor children of a defendant/restrained person subject to a Criminal Protective Order may modify the Criminal Protective Order if all of the following circumstances are satisfied:

i. Both the defendant/restrained person and the victim/protected person are subject to the jurisdiction of the Family, Juvenile, or Probate Court, and both parties are present before the Court.

ii. The defendant/restrained person is on probation (formal or court) for a domestic violence offense in Santa Clara County or is currently charged with a domestic violence related offense in Santa Clara County and a Criminal Protective Order has issued.

(Eff. 1/1/06)

iii. The Family, Juvenile, or Probate Court identifies a Criminal Protective Order issued against the defendant, which is inconsistent with a proposed Family, Juvenile, or Probate Court Order, such that the Family, Juvenile, or Probate Order is/will be more restrictive than the Criminal Protective Order or there is a proposed custody or visitation order which requires recognition in the Criminal Protective Order (Boxes 12 or 13 or both on the Criminal Protective Order form).

(Eff. 1/1/07)

iv. The defendant signs an appropriate waiver of rights form or enters a waiver of rights on the record.

v. Both the victim/protected person and the defendant/ restrained person agree that the Criminal Protective Order may be modified to a more restrictive order or to add Box 12 or 13 or both to the Criminal Protective Order.

(Eff. 1/1/07)

b. The Family, Juvenile or Probate Court may not modify existing Criminal Protective Orders to be less restrictive. Only if children are not listed as protected persons, a modification of the Criminal Protective Order to check Box 12 or 13 or both shall not be considered less restrictive.

(Eff. 1/1/07)

c. The Family, Juvenile, or Probate Court may on its own motion or at the request of a defendant, protected person or other interested party, calendar a hearing before the Criminal Court on the issue of whether a Criminal Protective Order should be modified. The Family, Juvenile, or Probate Court shall provide the Criminal Court with copies of existing or proposed Orders relating to the matter. Notice of the hearing will be provided to all counsel and parties.

(Eff. 1/1/07)
 

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