BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 491 (Evans)
As Amended March 25, 2011
Hearing Date: April 26, 2011
Fiscal: No
Urgency: No
BCP:jg
SUBJECT
Civil Procedure: Probate of Wills
DESCRIPTION
Existing law requires a person contesting a will to file an
objection with the court to the probate of the will, and
requires a summons to be issued and served, with a copy of the
objection, on specified persons.
This bill would clarify that the provisions that authorize a
clerk to issue a summons are applicable when a person files an
objection to the probate of a will.
BACKGROUND
Under existing law, an interested person may commence
proceedings for the administration of the estate of a deceased
individual by submitting a petition to the court. The petition
may include a request for appointment of a personal
representative, probate of the decedent's will, or both. If the
will is contested, the contestant must file an objection to the
probate of the will with the court, and the court must issue and
serve a summons on interested individuals with a notice of
hearing of a petition for administration of the decedent's
estate.
Existing law states that the above summons must be both issued
and served as provided in the Code of Civil Procedure sections
relating to service of summons. To remove confusion regarding
the process for those summonses, this bill would clarify that
their issuance must comply with specific provisions of the Code
(more)
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of Civil Procedure regarding the issuance of summons.
CHANGES TO EXISTING LAW
Existing law provides that when a will is contested, as
specified, the contestant shall file with the court an objection
to probate of the will. Thereafter, a summons shall be issued
and served, with a copy of the objection, on the persons
required to be served with the notice of hearing of a petition
for administration of the decedent's estate. (Prob. Code Sec.
8250.)
Existing law requires the above summons to be both issued and
served as provided in the chapter of the Code of Civil Procedure
relating to service of summons. (Prob. Code Sec. 8250; Code
Civ. Proc. Sec. 413.10 et seq.)
Existing law , not referenced by the above sections, provides for
the issuance of a summons pursuant to specified criteria
contained in a chapter of the Code of Civil Procedure relating
generally to summons. (Code Civ. Proc Sec. 412.10 et seq.)
This bill would clarify that the summons relating to objection
to the probate of a will must be issued as provided in the
chapter of the Code of Civil Procedure generally relating to
summons.
COMMENT
1. Stated need for the bill
According to the author, this bill would conform "the statute to
the legislature's stated intent . . . that the Code of Civil
Procedure's provisions concerning both the issuance and service
of summons is applicable to will contests and to revocation of
probate proceedings."
2. Clarifying cross reference
As noted above, existing Probate Code Section 8250 provides that
the summons shall be issued and served according to the Code of
Civil Procedure sections relating only to "service" of summons.
This bill would clarify that provision to, instead, state that
the summons shall be issued and served in accordance with the
Code of Civil Procedure (CCP) sections relating to issuance and
service.
SB 491 (Evans)
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Although arguably technical, it should be noted that the
reference to additional CCP sections would have policy
implications due to the requirement imposed by CCP 412.10 that
the clerk keep "each original summons in the court records and
provide a copy of each summons issued to the plaintiff who
requested issuance of the summons." That requirement, enacted
by AB 496 (Aghazarian, Chapter 300, Statutes of 2005), sought to
address problems caused as a result of court clerks returning an
original summons to the plaintiff (after signing and stamping
the document) for service on the defendant. Once the defendant
had been served with a copy of the summons, the plaintiff was
required to return the original summons to the court clerk. In
discussing the benefits of the clerk instead keeping the
original summons and the plaintiff only serving a copy, this
Committee's analysis of AB 496 stated:
The author �of AB 496] states the bill's requirement that
the clerk keep the original summons, and give only a copy to
the plaintiff, would prevent "unnecessary and burdensome
efforts to re-create originals �that were]? lost or damaged
while not in the possession of the court." The author notes
that a similar requirement is already being used effectively
in family law proceedings.
Judicial Council and the California Judge's Association
(CJA) support this provision of the bill, and state it would
simplify certain filing processes by eliminating the need
for a declaration of lost summons. The Judicial Council
"anticipates that the enactment of this provision would
result in cost savings to the courts since it would avoid
the problems that currently occur when an original summons
is lost."
Accordingly, the proposed additional reference to that
requirement would ensure that the change enacted by AB 496 would
apply to objections to the probate of a will. Staff notes that
the reference would also automatically incorporate any future
changes made to increase the efficiency or processes surrounding
the issuance of summonses.
3. Application to revocation of probate proceedings
The author further notes that the proposed change would also
clarify the process for the issuance of summons in revocation of
probate proceedings. That clarification would occur because
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Section 8271 of the Probate Code requires summonses for those
proceedings to be "issued and served . . . as in the case of a
contest of the will." (emphasis added.)
Support : One individual
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : SB 647 (Committee on Judiciary),
would make various changes relating to civil law. This bill is
in this Committee.
Prior Legislation : AB 496 (Aghazarian, Chapter 300, Statutes of
2005), see Comment 2.
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