The topic of this blog post is discovery procedures which can be used in California probates. Note that the term probates encompasses any proceeding commenced under the Probate Code in California and includes not only the probate of estates and trust proceedings, but also conservatorship and guardianships as well.
Parties in California probates may utilize the same discovery procedures as are used in California civil litigation unless the Probate Code states otherwise. And all issues of fact in a probate proceeding are tried using the same rules of practice that are used in civil litigation.
Probate Code § 1000 states that, "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions".
This means that parties to probates may use form and special interrogatories, requests for admission, truth of facts and genuineness of documents, and requests for production of documents in addition to depositions and the other discovery procedures commonly used in civil litigation in the State of California.
The importance of discovery in probates as with other litigation cannot be emphasized strongly enough. Correct use of discovery procedures can mean the difference between winning and losing for many probates. Failure to properly use the discovery procedures will result in many cases which could have been won at trial, or a reasonable settlement reached before trial, being lost instead.
The following discovery procedures can be very cost effective when used properly in probates
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Form and special interrogatories are very useful as a party can request the other party to state all facts, identify all persons having knowledge of the facts, and all documents in support of the facts which, support the other party’s requests made in that party’s petition, objection or other response.
Requests for admission can also be used to request the other party admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.
And requests for production of documents are also very useful in obtaining copies of correspondence, bank and financial records, and other documents that are pertinent to that particular probate case.
Other discovery procedures can also be used but the ones mentioned above are particularly cost effective.
The right use of discovery procedures in California probate cases is a vital tool in (1) evaluating the strengths and weaknesses of each party’s case; (2) preparing for trial, and (3) facilitating settlement negotiations.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net
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