Revisions to the Probate Local Rules: A Work in Progress

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Poling_Scott_webSomewhat quietly during the past year, the Contra Costa Superior Court embarked on a comprehensive review and overhaul of the Local Rules. As a part of that larger project, Judge Sugiyama assembled a probate-centric committee to recommend updates to the rules governing practice in the Probate Department (or the Probate Division, as it is now collectively known).

The committee—consisting of court administration, probate examiners, court investigators and attorneys—worked diligently over the last few months to recommend substantive changes. Reaching a consensus was often challenging and, as might be expected, most of the changes are merely clarifications and minor “tweaks” to the existing language.

However, a few of the changes will definitely be of interest. A public comment period will be open from July 21, 2014, to September 8, 2014, so there is still time to speak up about the proposed changes.

Housekeeping Issues: Rules vs. Guidelines

If you’re familiar with the format of the 2014 Local Rules, you’ll know that the actual Probate “Rules” consist of only two pages (i.e., Rule 6, “Probate Department”). However, an additional 35+ pages of Probate Court “Guidelines” exist as Appendix A (with all of its various subsections, parts and attachments).

The probate provisions were originally developed in this format to provide the Probate Court with flexibility; “Rules” are not easily changed, while “Guidelines” can be updated fairly quickly to reflect the ever-evolving world of probate practice. This seemed to be largely a distinction without a difference to the attorneys appearing in Department 14, though it did make the layout a bit confusing.

To provide some consistency with the rest of the Local Rules, the court will likely incorporate/renumber the provisions of “Appendix A” into the main section of the 2015 Local Rules.

Substantive Changes of Note

At the time of this writing, the 2015 proposed Local Rules have not been posted for comment (and are therefore subject to revision in the interim). However, below are some of the more substantive changes that I believe will be included:

A) Streamlined Fee Procedure Available for Court-Appointed Counsel

[New] Rule 116(e) will allow Court-Appointed Counsel to submit moderate fee petitions (i.e., less than $5,000) ex parte, so long as 15-day’s notice of the ex parte submission is provided.

B) Notice Additions Under “Appointment of Executors and Administrators”

[New] Rule 302(e) will now require that a copy of the underlying Petition be served along with the initial Notice of Petition to Administer Estate.

[Revised] Rule 303(a)(6) will now require a Notice of Petition to Administer Estate be mailed directly to trust beneficiaries (in addition to the Trustee), where the Trustee is also the proposed Personal Representative.

C) Bond for Out-of-State Executors

[Revised] Rule 305 will require nonresident Executors to post bond of at least $20,000 (even if all beneficiaries waive bond). The requirement is intended to protect creditors who might lack sufficient remedies against an out-of-state Personal Representative.

D) Final Conservatorship/Guardianship Account within Six Months of Termination

[New] Rule 825(e) requires the Final Account of Conservator or Guardian to be filed within six months of the termination date (e.g., death of the Conservatee). If the account is not filed within the six-month period, the fiduciary is required to file a status report addressing the delay.

E) Approval of (Nominal) Fees Without Supporting Declaration

A long-standing, though seldom-used, provision of the Local Rules allowed approval of annual fiduciary fees of up to $1,000 without need (and expense) of a supporting declaration. [Revised] Rule (Attachment 2, (f)(4)) will now allow approval of an annual fiduciary fee of up to $1,500 (for non-professional fiduciaries) and up to $3,000 (for professional fiduciaries) without a supporting declaration. This should reduce some of the costs associated with these smaller cases.

F) No Change to the Maximum Hourly Rates

While still subject to an eleventh-hour change, the standard “Maximum Hourly Rates” for attorneys and professional fiduciaries are likely to remain at $325 per hour and $125 per hour, respectively.

A wise person once said, “a camel is a horse designed by committee.” While not perfect, the 2015 changes to the Probate Local Rules certainly represent a positive, collaborative effort of the court, administration, and the Contra Costa County Bar Association. The process is not yet complete! As a reminder, the public comment period is open through September 8, 2014.


Scott Poling is a graduate of King Hall, UC Davis. His practice focuses on conservatorship, trust and estate administration, and related disputes, representing individual and professional fiduciaries. He also handles contested conservatorship matters, often serving as court-appointed counsel for proposed conservatees. Mr. Poling serves on the Board of the CCCBA Estate Planning & Probate Section, and regularly sits as Judge Pro Tem in the Probate Department of the Contra Costa Superior Court. He can be reached at (925) 256-7000 or Scott@PolingLaw.com.

 

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