California Partition Law Blog
Discovery is an important tool for parties in a lawsuit to get information to prepare for trial and to decide what issues to focus on in a case. In California, the rules governing discovery are laid out in the Civil Discovery Act in Title 4 of the Code of Civil Procedure. These discovery rules apply to civil lawsuits and special proceedings of a civil nature (Code Civ. Proc. § 2035) Probate proceedings are special proceedings, so these discovery procedures are equally applicable. (Estate of Joseph (1897) 118 Cal. 660, 663.) This is important because it allows parties to use deadlines and other discovery tools to their advantage in a probate proceeding.
The Civil Discovery Act applies to probate proceedings and disputes. (Prob. Code § 1000(a).) The normal rules of discovery in civil actions apply, and as such the same discovery procedures are available for use in probate court. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987.) One part of probate proceedings is marshalling assets, which involves locating and taking inventory of a decedent’s assets. A representative may suspect third persons are withholding property or have knowledge about property, special discovery procedures can be used to require the third party to answer relevant questions. (Prob. Code § 8870-8873.)
In probate court, any time requirements laid out in the discovery act begin to run after service of petition and notice of hearing. (Prob. Code, § 1000(b).) This means a petitioner in a proceeding can begin discovery regarding parties and nonparties once a petition is filed. (Morris Stulsaft Foundation v. Superior Court In and For City and County of San Francisco (1966) 245 Cal. App. 2d 409, 415.) If they use it strategically, parties can rely on the Code of Civil Procedure to give them an advantage.
Using Discovery to Dispute a Trustee’s Accounts
A probate dispute may arise when a probate court approves the trustee’s accounts. For example, a party may claim the trustee neglected her duty. (Coberly v. Superior Court for Los Angeles County (1965) 231 Cal.App.2d 685, 690.) Here, the Civil Discovery Act allows for a full inspection of documents. (Strauss v. Superior Court 36 Cal.2d 396, 401–402.) In this type of accounting review, the petitioner can use other discovery devices like deposition. (Coberly 231 Cal.App. at 691.) However, the responding party is still protected against abuse of these discovery tools and the petitioner must act with good cause in conducting their discovery. A beneficiary of a trust can file formal objections to a trustee’s position and then conduct discovery relevant to their objections. These formal objection or responses must be filed before the beneficiary can proceed with discovery. (Mota v. Superior Court (2007) 156 Cal.App.4th 351, 355–356.) This must be an actual response or objection not a continuance. (Cal. Prob. Code § 1043(c)) Where a party did not file a proposed response or objections, nor orally objected at a hearing a court does not need to allow discovery. ((Cal. Prob. Code § 1043(d); Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 985.)
Using Discovery to Contest a Will
Another type of probate dispute is when a will is contested. Regarding will contests in the probate court, courts have found the use of discovery is not limitless. A probate court cannot expand methods of discovery beyond the discovery act even as a discovery order. Holm v. Sup.Ct. (1986) 187 Cal.App.3d 1241, 1245-1249 [attempting to order the autopsy of a decedent].) Discovery must be limited to a deceased person’s will. (Estate of Gallio (1995) 33 CA4th 592, 597.) However, a probate court can still impose terminating sanctions if a party engages in a continued pattern of discovery misconduct. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)
Using of Discovery to Distribute an Estate
A common type of probate proceedings is deciding the distribution rights of an estate. In these disputes, the use of discovery is particularly important. Parties need information about the estate for the court to determine how it should be distributed (Prob. Code § 11700) This means counsel can conduct depositions, interrogatories, requests for admission. The Civil Discovery Act also dictates the burdens, standards of proof, and evidentiary rules that apply in discovery. (Prob. Code § 1000; CCP § 2016.010 et seq.) With the availability of discovery tools, so are safeguards against those tools, including abuse of discovery and lack of good cause. (Coberly v. Superior Court for Los Angeles County (1965) 231 Cal.App.2d 685, 690.)
Using the Discovery Act to Prevent Further Discovery
In a probate proceeding parties can also use the discovery act to prevent further discovery. While the right to discover assets is important the information sought must be relevant or reasonably calculated to obtaining a fair division of assets. (Morris Stulsaft Foundation v. Superior Court In and For City and County of San Francisco (1966) 245 Cal.App.2d 409, 422–423. If a party feels a discovery request extends too far, the party may obtain an order to show cause under Code Civ. Proc. § 2556. If granted the order allows discovery to be limited or even deemed unnecessary. (In re Marriage of Hixson (2003) 111 Cal.App.4th 1116, 1122.)
Alternatively, if a party fails to admit the genuiness of a document or truth of a matter as dictated by Chapter 16 of the Discovery Act the party requesting that admission can prove its genuineness and move for an order. (Code Civ. Proc. § 2033.420, subd. (a)) This order will require the party to pay the reasonable expenses incurred in making the proof, including attorney’s fees. (Bruno v. Hopkins (2022) 79 Cal.App.5th 801, 814.)
What is an example?
For example, Julie is the heir to a trust administered by Shawn acting as the trustee. Julie thinks Shawn is stealing money from the trust and withholding property she is rightfully entitled to. Julie and Shawn’s dispute escalates to Julie bringing suit in the probate court. As a beneficiary to the trust, she is entitled to use discovery to get information and documents regarding Shawn’s conduct and distribution of trust property.
This means Julie could depose Shawn or someone else who he may have confided in about stealing from the trust. Julie could also serve requests for admission and form interrogatories to try to get Shawn to admit to stealing or mishandling the trust. If Shawn did not respond within a timely manner or responded in bad faith, Julie could invoke the sanctions afforded to her by the Civil Discovery Act to ensure compliance by Shawn or compensation.
Otherwise, Julie could also request relevant documents related to Shawn’s handling of the trust. By using the tools in the discovery act, Julie could better focus her suit on Shawn’s mishandling of the trust and better support her claims against him.
Conclusion
The Underwood Law Firm has a team of experienced lawyers who can help resolve your property interest disputes at trial and help you pursue solutions like partition actions. We are here to help.