California Probate Manifesto

An open letter to my colleagues in the California Probate Court System:

Lisa MacCarley – SBN 164458
Attorney at Law
700 North Brand Blvd. , Suite 240
Glendale, CA 91203
T: 818.241.5800 – F: 818.241.5895

The Problem: Example #1

This past New Year’s Eve, I reluctantly went to an ex parte hearing in Orange County knowing that the petition should have never been put on the Court’s calendar in the first place. The judge was being asked to “remove” a trustee who resides in San Diego County.

I was quick to inform the judge that because the Trustee lives and works in San Diego County, the law of the State of California requires that petitions relating to this trust must be filed in San Diego County. The law I was referring to reads as follows: “The proper county for commencement of a proceeding pursuant to this division is…in the case of a living trust, the county where the principal place of administration of the trust is located.”1

The principal place of administration is where the trustee lives and/or works, and that is why the ex parte petition had to be denied, and yet, the judicial officer emphatically, repeatedly, told me that I was wrong.

The Problem: Example #2

In San Bernardino county, I represent a “special administrator” who was appointed solely for the purpose of filing a civil wrongful death lawsuit. She has no other authority or powers other than to represent the decedent in this one single matter. Yet, I was ordered to appear at an OSC and ordered to file an “inventory” of the estate.

My client has no authority–legally, morally or otherwise–to marshal assets, and if there were assets to marshal, I would have filed for general administration. The distinction between a “special administrator” and “administrator” was lost on this judicial officer–who is as kind, gentle, and thoughtful as any I have the honor to appear before. Still, due to his lack of understanding of the probate code, he wasted courtroom time and made a needless request of a woman who is reeling from the sudden death of her son in an automobile accident.

Not long ago, a judge in the Los Angeles probate court steadfastly refused, in spite of my written and verbal recitals to the law, to follow the probate code pertaining to statutory preference in the appointment of an estate administrator, and ordered the parties–a child of the decedent and the surviving spouse of the decedent–to trial.

Clearly, using a courtroom and staff for a trial when the state legislature has already mandated the result is a terrible waste of judicial resources.

One Size Does Not Fit All

I have no doubt that judicial officers serving in probate courts today are intelligent, caring, and very much interested in doing the best they can. But something is amiss, and I believe that assigning a judge who has worked in family law, or the criminal courts–or in any background other than probate–and asking them to preside in an “all purpose probate court” – where every single type of probate petition imaginable could land on your docket – would be the equivalent of giving the keys to a Provost bus to a taxi driver.

When it comes to probate proceedings, one size does not fit all.

Not only does this lack of probate law savvy hurt the parties, most of whom are reluctantly at court because of a death, dementia or other heartbreaking crisis, it costs taxpayers money as well. This inadvertent wastefulness needs to beaddressed and rectified before the Baby Boomers reach their 80’s in 2025.

Is there a solution that could, possibly, work well for the judicial officers as well as the public? Yes, I think there is a solution that will solve a myriad of problems.

It is time to end “all purpose” judicial assignments in probate court, especially in Los Angeles county, where there are now 10 courtrooms dedicated to just probate proceedings.

A Zealous Advocate’s Dream: A Probate Court Designed with People in Mind (!)

If I could waive the proverbial magic wand, this is how the Los Angeles County probate courts would be rearranged:

  1. Courtrooms 11, 9, 292 and 5 are conveniently located on the Second Floor of the Central courthouse where there are two ADA entrances on the north and south side of the second story corridor. There are also ADA bathrooms equipped with diaper changing areas. There is a snack bar and a children’s waiting area, as well as direct access to Grand Park. These 4 courtrooms should be dedicated to Conservatorships, Limited Conservatorships, Guardianships and Minor’s Compromises. These are cases where developmentally disabled individuals, frail elderly appear.Yes, it’s a statutory mandate, as in the word “shall” be produced at court for “appointment” hearings. (PC 1825) These individuals should be provided the courtrooms that are ADA accessible and just as importantly, with judges who are thoroughly familiar with the laws pertaining to those proceedings.The sixth floor of the Central Courthouse, where four “all purpose” probate courtrooms are located, does NOT have an ADA bathroom, or a snack shop, nor does it have direct access to an exit. In the event of an earthquake or other catastrophe, persons in wheelchairs on the sixth floor have no access out of the building until they navigate two flights of stairs.Naturally, I have no idea of the negotiations that go into assigning and selecting courtrooms, but I cannot imagine that there are not four or five judges on the fourth floor of the courthouse who would not be willing to “trade” courtrooms and move to the sixth floor if they were made aware of the challenges presented to proposed conservatees as things stand now. The fourth floor, unlike the sixth, also has ADA bathrooms, a snack shop, and entrance on street level affording wheelchair bound people an escape route, as well as the “probate clerk’s office.”
  2. I also propose that the “appointment hearings” in conservatorships and guardianships and Minor’s Compromises be set at 1:30 p.m. and here are some of the reasons why:Los Angeles Unified School District reports that over half of their student population qualifies for free breakfast and lunch. By setting hearings that require a child’s presence at 8:30 and 10:30 a.m., not only are we asking them to travel to court during rush hour traffic, but also the Court is potentially depriving them of breakfast and lunch. Every single day, children are sitting around in the hallways of the probate court waiting for the 10:30 a.m. calendar, certainly not learning and possibly not eating. For low-income families, these free meals at school, generally served before 12:30 p.m. each day, may be the very first nutrition that the children get until dinnertime.The stress of missing work in the morning is also an issue for low-income parents who could otherwise work until noon, collect their child, and make it to Court at 1:30 p.m. or soon thereafter.The busiest time of day for nursing homes is also the morning. On top of changing, feeding, bathing, clothing, and medicating patients, the morning calendar for conservatorship appointments adds the stress of transporting frail seniors through morning traffic.A family waits for the 10:30 calendar to start, missing work and missing school.
  3. Finally, it is also inappropriate that children, incapacitated adults and developmentally disabled people are presently being asked to arrive at court for a 10:30 am calendar only to wait in the hallway while the judges finish their 8:30 am and 10:00 am hearings.Making these people as comfortable as possible, and getting them in and out of the courthouse, should be a priority of the probate court. Instead, they “hurry up and wait” in hallways.Ironically, while there is literally nothing – in this lawyer’s opinion – more important than proper guardianship and conservatorship appointment hearings in which civil rights are possibly being taken away – these hearings are presently squeezed in between the 10:00 am “law and motion” calendar (which often goes beyond 10:30 a.m.) and lunch at noon. This is makes no sense at all.Two or three afternoons in each of 11, 9, 29, and 5 should be for appointments and minor compromises, leaving two or three afternoons in each courtroom for trials.

The Power of Focus

What else would this modification do? It will allow the four or so judges assigned to these courtrooms the luxury of learning the relevant law. This is what I yearn for: to walk into a courtroom on a Petition for Appointment of a Probate Conservator and have confidence that the judicial officer will have read the file – not just the probate notes – and know the law. Too often, I have attended hearings where judicial officers, relying solely on probate notes and not the law, have made findings and orders in Temporary Conservatorships that are not only unwarranted, they are flat out violations of civil rights. Never is it appropriate to make dementia findings or take away voting rights during a temporary conservatorship, but that happens all the time.

Further to this proposal for “specialty courtrooms” would be that the judicial officer would have a dedicated team of probate calendar attorneys and courtroom assistants who will actually know the law, the forms, the importance of processing orders for appointment, etc.

Right now, it takes 7 – 10 days to get a hearing on a temporary conservatorship, which is now routine because it takes 70 days to get a hearing on an appointment for permanent conservator. Assuming the temporary “emergency” petition is granted, it takes 3 – 4 weeks to get the order back from the Court. This is unacceptable.

The above points are a start–and represent a bare minimum of acceptable service, in this advocate’s opinion. But there is more we can do:

  • Trust matters should be handled by a judicial officer who has taken the time to study trust law. Is it too much to ask that he or she has actually read the relevant (disputed) portions of “the trust” at issue? This last week, a colleague commented to me, unaware of my drafting of this manifesto, but so timely: “Well, you know how it is, none of the judges know the law or read the trusts.”
  • Straight forward probate matters should be sent to a courtroom that is geared to process probates efficiently and quickly. In the old days, this courtroom was assigned a commissioner from the staff of probate calendar attorneys. This would be a welcome change.
  • The less accessible courtrooms (TBD on the fourth floor) should obviously be assigned the “decedent’s administration” and “trust” matters since they are unlikely to require the mandatory appearances of a child, a frail incompetent elder, or developmentally disabled adult.

By the way, in case anyone does not believe that my suggestions are feasible or possible, none of this is drawn strictly from my imagination. Up until the mid-2000’s, Los Angeles County Central probate courts were divided so that one department handled conservatorship and trust matters, and other handled probate and guardianships, and Orange County already sets hearings on appointment petitions at 1:30 p.m.

It has been done, it can be done, and there is no doubt in my mind that these simple changes will result in a better probate court system for everyone.

1 PC17500(a)

2 First thing, please restore Department 7 as the courtroom between 5 and 9. Remember, this is a population of disabled people and their families. Why make it hard for them to find a courtroom? Same with 2D on the 6th floor.