Streamlining probate: expert tips to avoid unnecessary hearings

"Thank you, Counsel, I see there are notes to clear, our next available court date is six months from now." These words are tough to hear as a probate lawyer but are a common occurrence these days across California. Clients wait months for a court date, only for probate notes to be released sometimes the day before with too little time to address. Court calendars get crowded, judges/court staff are overworked, clients are frustrated, and estate assets sit idle. Additional courtrooms and staff are not an easily available option. What are we to do?

I turn 40 next year. Still a young man by most accounts, but it's a strange thing getting older. I fall asleep now watching baseball. I have greater appreciation for dad jokes. And I realize as I progress in my career that my tolerance for wasting time is quickly leaving me. I have a growing firm, a wonderful wife, a wild five-year-old boy, and an ailing 17-year-old pug. I don't have as much time for nonsense.

I find myself questioning why we do things certain ways. We can all improve things from our unique perspectives. We are not resigned to keeping our heads down and fighting through inefficiencies and frustrations.  We can affect change. So here I write, with some ideas and hope that I might improve our small part of the legal system.

These ideas have two simple goals: reduce continuances and reduce the number of hearings on calendar.

These are major key performance indicators in probate. What percentage of matters that could be resolved each day are continued, only to be dealt with months later? I'd estimate 20% or more.

The massive waste of time and resources we all spend on continuances at scale is staggering. Minute orders prepared, dockets updated, calendars adjusted, clients informed, notices sent, internal tasks set - and then we wait, we forget, only to revisit the issues.

Every minute and dollar we spend dealing with that second court date is a waste. Even in simple matters, hours of our time and mental energy are exhausted. All that court calendar space, gone.

The court does a great job with the resources they have. This issue is not on them. Having more resources to release probate notes three weeks in advance would be amazing, but that is a big budget solution. Instead, I present here ideas that would require relatively little time and money and would likely prevent thousands of unnecessary hearings in the coming years.

IMPROVED PROBATE NOTE SYSTEMS WITH AUTOMATED NOTIFICATIONS

Why are lawyers so charming? Because they have their own appeal! Yes, I'm sorry, I know, the dad jokes.

I enjoy practicing in probate. It's collaborative. We have great judicial officers and court staff, and I like to think they like us as lawyers too (when we do good work).

That's why I like the probate note system: The court has questions before the court date, we answer, and before the hearing date, our petitions are recommended for approval (RFA). We love seeing RFA, it's beautiful, but it requires everyone to be proactive to clear notes and prevent continuances.

We try to avoid them, but notes happen. The sooner we know about notes, the better, because we might realistically only have a matter of hours to address notes to avoid a continuance. We must gather information, prepare declarations, get client signatures, and file with enough time for court review. With current e-filing procedures, it might be days before the court can even access our declaration from the bench.

Do we get automatically notified when notes are posted? No. We are in the stone age, manually checking for notes at intervals in the weeks approaching the hearing. Hundreds of hours wasted across law firms on this rote task.

This seems like a great, missed opportunity for the court. An automated notification system parties could subscribe to would get notes to them hours (or even days) earlier. For pro pers, it might be the difference of them getting them at all. That extra time is significant.

The court could then have higher expectations for attorneys in clearing notes. Instead of asking on the nth matter if counsel has seen notes, courts would know when notes were sent and inquire why they weren't cleared.

We need a probate note system that parties can subscribe to for automatic notifications, which allows the court to see responsive declarations immediately. This is a collaborative effort, yet we are hamstringing our judicial officers and law firms in a time when collaborative software is everywhere in our culture.

ALLOW WAIVERS OF ACCOUNTING WITHOUT HEARING

Waivers save time. They save probate attorneys from examining tedious accountings. But if waivers are set on the same calendar as accountings, there is little benefit for parties to get heirs to agree to sign waivers.

Where there's agreement, things should be faster. San Bernardino County local rule 20-912 provides a good framework. Take filings under submission instead of taking up court calendar space. Approve them faster. We already do this with family law judgments, we can do the same with probate.

FORMS FOR FINAL PETITIONS

Probate is the only major practice area without mandatory forms to conclude matters. Why? It is not too complex. We have comprehensive family law judgment packets, while we leave probate pro pers lost in the pleading woods.

Some counties have optional local forms for final petitions and orders: San Diego (PR-165), Santa Barbara (SC-6028). They work. I can only imagine what the court deals with in review of final petitions: searching for pertinent information buried throughout 10 pages of pleadings, every firm doing it differently, chaos.

Judicial council forms allow for uniformity and streamlined review. Anything that can be done to simplify forms will result in fewer notes and less continuances.

My hope is that these ideas would bring us improvements in quality of life, prevent thousands of unnecessary hearings, and most importantly, allow us all to deal with a little less nonsense.