Probate Court Litigation

Orange County Probate Court Litigation Lawyer



summons-740Part of the California Superior Court system is dedicated to administration of trusts and estates and the deciding of lawsuits over all aspects of trusts and estates. Probate court litigation lawsuits in the probate court are known as “petitions”. All counties in California have probate divisions with their own judges and staff and clerks which are separate from the Superior Court civil divisions and criminal divisions.  Probate court has its own set of laws, rules and regulations.


To start a probate court case a written petition is prepared which states what is being complained about, identifies the parties involved, and asks for specific relief. The parties are known as the petitioner and the respondent this is equivalent to the plaintiff and defendant in a civil case.  A probate petition is the equivalent of a lawsuit complaint filed in civil cases in the Superior Court. An example of specific relief would be to ask the court to remove the estate executor or the trustee of the trust for some sort of wrongdoing. Another example for specific relief would be to ask the court to make the estate executor or trustee pay back money that was wrongfully taken or spent.


When a probate petition is filed with the court, the clerk assigns an initial hearing date which is typically 4 to 6 weeks away.  At or before the hearing date, the respondent to the petition must file opposition to the petition stating his or her defenses and point of view of the situation.  If opposition is not filed, the petition will be granted at the initial hearing. If opposition is filed then the court will set the case for a status conference and or settlement conference typically many months down the road. If the case cannot be settled after a settlement conference, the case will be set for a trial setting conference. At the trial setting conference a trial date will be established. Trials in the probate court are in front of a judge only as there are no juries. In Los Angeles and Orange County Superior Court it typically takes a year or longer to get to trial because of the shortage of judges and staff at the courthouse and because these types of cases can involve complex matters which take time to put together.


Virtually anything which is filed with the probate court  can be disputed with a petition. Here are the general categories that the cases fall into:

1 — Actions by and against the personal representative of a probate estate –the executor or administrator– including:


  • contesting the appointment of the personal representative;
  • litigation concerning the probate inventory and appraisal for failure to file, contesting the inventory contact, and contesting appraisals;
  • disputes concerning claims by family members and former spouses and liability for spousal debts;
  • proration of taxes;
  • surcharge of personal representative for breach of fiduciary duty
  • negligence and managing and controlling the estate.


2 — Claims of the probate estate against third parties including:


  • collection of debts owing to the estate;
  • damages caused to the estate property by third parties.


3 — Wrongful death claims. The personal representative of a decedent’s estate may bring a wrongful death action on behalf of of all survivors to have standing to be claimants.

4 — Claims of third parties against the estate such as:


  • creditors who are owed money by the decedent;
  • tax claims against the estate for the decedent’s unpaid taxes.


5 — Will contests where persons disagree with what the will says and seek to have the will set aside. Typical grounds would be fraud, undue influence or lack of testamentary capacity.

6 — Proceedings to determine entitlement to estate distribution. This is where there is disagreement about who is related to for example and who is entitled to what.

7 — Resolving disputed property claims including:


  • spousal property claims where a surviving spouse has claims against the estate as to which property belongs to;
  • joint tenancy disputes as where beneficiaries under a will claim that joint tenancy was terminated before the decedent died;
  • Totten trust disputes where beneficiaries and joint tenants question who is to get the money and certain accounts;
  • Marvin rights where unmarried cohabitants bring an action to claim part of the estate;
  • creditors claims as to property rents or proceeds.


CALL  (949) 851-1771  to speak with Lawyer  David L. Crockett

Be careful of time deadlines

All types of claims have legal time deadlines known as “statutes of limitation”. You will typically need an attorney to advise on the time deadlines involved. The time deadlines require that a court petition be filed with the probate court by the deadline. The deadlines are strictly enforced and late filing is usually not permitted. Therefore, when somebody passes away, those having any connection with the estate when the deceased should consult legal counsel as soon as possible to determine what time deadlines are involved.

Conveniently located in Newport Beach near the John Wayne Airport

We are located near the Orange County California John Wayne Airport. My office is catty-corner from Fletcher-Jones Motorcars; —right behind the rear entrance of Newport Lexus on Dove Street. Here is a picture of my office building and a Google Map to get your bearings.