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Local Probate Rules of Court
PROBATE RULE 1 ADMINISTRATION AND GENERAL POLICIES
A. SCOPE
B. ALL PURPOSE JUDGE
C. CASE ASSIGNMENT
D. VENUE
E. CONSOLIDATION
F. COORDINATION WITH CUSTODY CASES
G. PROBATE CALENDAR
H. TELEPHONIC APPEARANCE
I. DEADLINE FOR SUBMITTING PROPOSED ORDERS IN UNCONTESTED MATTERS
J. OBJECTIONS
K. CONTESTED MATTERS
L. APPROVED MATTERS
M. CONTINUANCES
N. APPOINTMENTS
O. WITHDRAWAL OF ATTORNEY OF RECORD
P. COURT COMMUNICATION REGARDING RESTRAINING ORDERS
Q. PRIVACY REQUIREMENTS FOR DOCUMENTS FILED IN PROBATE MATTERS
R. COURT INVESTIGATOR REPORTS
A. SCOPE
The Probate Department will hear all matters concerning the
Probate Code, or related matters, as well as adoptions, terminations of
parental rights, name changes, minor's compromise matters, and mental health
matters under the Lanterman Petris Short (LPS) Act.
(Eff. 1/01/10)
B. ALL PURPOSE JUDGE
All matters filed in the Probate Department, including
trials, shall be assigned to the Supervising Judge of the Probate Department
as the All Purpose Judge (APJ).
(Eff. 1/01/10)
C. CASE ASSIGNMENT
If a case is sent for trial to the Civil Division based upon
its expected length or for other reasons, the APJ shall hear all issues up
to trial, including any ex parte requests, with the exception of discovery
issues. Discovery issues shall be heard in the Civil Discovery Department.
However, if a Court employee or deputy sheriff working in the Probate
Department, or a member of his or her family, is a party to a case, the
clerk or Supervising Judge of the Probate Department shall transfer the case
to the Civil Division for assignment for all purposes.
(Eff. 1/01/10)
D. 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.
E. 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)
F. COORDINATION WITH CUSTODY CASES
If there is an action in Family Court regarding the custody
of a minor child and an action for Guardianship of the Person or Person and
Estate of the minor child in the Probate Court, the cases will be
coordinated for hearing purposes and assigned for hearing to the Probate
Court. (See also Rule 12C and D.)
(Eff. 7/01/10)
G. 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)
H. 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. 1/01/08)
I. 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.
J. 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. 1/01/08)
(5) Objection to Petition to Terminate Guardianship (attached
form PB-4039)
(Eff. 1/01/09)
(6) Objection to Guardianship (attached
form PB-4043)
(Eff. 1/01/09)
(7) Objection (attached form PB-4045)
(Eff. 7/01/09)
K. CONTESTED MATTERS
(1)
SUBMISSION ON THE PLEADINGS
At-issue, contested matters that are ready for hearing and
that parties will submit on the pleadings without oral argument may be taken
under submission or ruled upon at the scheduled hearing.
(Eff. 1/01/09)
(2)
HEARING
(Eff. 1/01/09)
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. 1/01/07)
(3) TRIAL BRIEFS
If a party elects to file a trial brief relating to an
evidentiary hearing set in a probate matter, the trial brief must be filed
and served no later than 7 court days before the scheduled hearing. Any
responsive briefs must be filed and served no later than 3 court days before
the scheduled hearing. Courtesy copies of any trial briefs and responsive
briefs shall be delivered to the courtroom of the judicial officer hearing
the matter on the date of filing. Attaching copies of previously filed
documents as exhibits to trial briefs is discouraged.
(Eff. 1/01/09)
L. APPROVED MATTERS
Approved matters are those that have been reviewed and found
satisfactory 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 are no
pre-approved matters for the Tuesday guardianship and conservatorship
calendars.
(Eff. 1/01/09)
All approved probate orders will be signed immediately after the calling of the
probate calendar. Parties may pick up their orders at that time.
(Eff. 1/01/09)
M. 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. The
Court discourages repeated continuances of a matter.
(Eff. 1/01/09)
A continuance may 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. 1/01/09)
N. 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.
O. 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. 7/01/07)
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.
P. 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. 1/01/06)
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. 1/01/07)
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. 1/01/07)
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. 1/01/07)
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. 1/01/07)
Q. PRIVACY REQUIREMENTS FOR DOCUMENTS
FILED IN PROBATE MATTERS
(1) Social Security Numbers
If an individual's social security number must be included
in a pleading or other court form, only the last 4 digits of the social
security number should be used. If the social security number is required by
the Court Investigator to complete the investigation, the number shall be
supplied only to the Court Investigator, absent a court order.
(2) Financial Account Numbers
If financial account numbers are relevant, only the last 4
digits of such numbers should be used.
(Eff. 1/01/09)
R. COURT INVESTIGATOR REPORTS
Court Investigator Reports are confidential documents and
are not to be attached, in whole or in part, to any pleadings or other
documents to be filed with the Court, other than by the Court Investigator.
(Eff. 1/01/09)
Probate Rules: Summary -
Intro - 1 -
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List of attached Probate local forms
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