BILL ANALYSIS �
SB 491
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Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 491 (Evans) - As Amended: March 25, 2011
PROPOSED CONSENT
SENATE VOTE : 40-0
SUBJECT : Civil Procedure: Probate of Wills
KEY ISSUE : SHOULD THE PROCEDURE FOR ISSUING A SUMMONS WHEN
SOMEONE OBJECTS TO THE PROBATE OF A WILL BE CLARIFIED TO BE
CONSISTENT WITH THE ISSUANCE OF OTHER CIVIL SUMMONSES?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill clarifies procedural issues when
someone objects to the probate of a will. Existing law requires
a person contesting a will to file an objection with the court
to the probate of the will, and requires that a summons be
issued and served, with a copy of the objection, on specified
persons. This bill clarifies that the general civil provisions
that authorize a clerk to issue a summons are applicable when a
person files an objection to the probate of a will.
SUMMARY : Clarifies that the summons relating to an objection to
the probate of a will must be issued as provided in the chapter
of the Code of Civil Procedure (CCP) generally relating to
summonses.
EXISTING LAW :
1)Provides that when a will is contested, as specified, a
contestant shall file with the court an objection to probate
of the will. Provides, thereafter, that 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.
(Probate Code Section 8250.)
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2)Requires the above summons to be both issued and served as
provided in the chapter of the CCP which relates to service,
but not issuance, of summonses. (Probate Code Section 8250;
Code of Civil Procedure Section 413.10 et seq.)
3)Provides for the issuance of civil summonses pursuant to
specified criteria. (CCP Section 412.10 et seq.)
COMMENTS : 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 issuing and serving the summons in these cases,
this non-controversial bill clarifies that their issuance must
comply with specific provisions of the CCP regarding the
issuance of summons.
According to the author, this bill conforms "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."
The Bill Clarifies the Appropriate Cross Reference : The Probate
Code currently provides that the summons for challenging a will
shall be "issued and served" according to the CCP sections
relating only to "service" of summons. This bill clarifies that
provision, instead, to state that the summons shall be issued
and served in accordance with the CCP chapters relating to
issuance and service of summonses.
Although arguably technical, it should be noted that the
inclusion of additional CCP sections has policy implications due
to the requirement imposed by CCP Section 412.10, and applicable
to the will contest case as a result of this bill, that the
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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, Chap. 300, Stats. 2005), sought to
address problems caused as a result of court clerks returning
the 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:
Currently, a party fills in a blank summons which the clerk
"issues" by signing and stamping it, and returning it to
the party. The server is supposed to return the original
summons to the court. (Code of Civil Proc. section
583.210.) Lost summons create inefficiency and obstacles
in the functioning of the court because the clerk does not
have a copy of the summons (e.g., clerks must reject
requests for entry of default because a summons was not
returned). In family law there is already a rule of court
that requires the clerk to keep the original summons in the
court file, and it is reportedly working well. This bill
would enact a similar provision for all other civil cases.
Therefore, this provision of the bill appears to be
warranted.
Accordingly, the proposed additional reference to that
requirement will ensure that the change enacted by AB 496
applies to objections to the probate of a will. Additionally,
under this bill, any future changes made to increase the
efficiency or processes surrounding the issuance of summonses in
the CCP will automatically be incorporated into a challenge to
the probate of a will.
Application to Revocation of Probate Proceedings : The proposed
change also clarifies the process for the issuance of summons in
revocation of probate proceedings. That clarification occurs
because 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.)
REGISTERED SUPPORT / OPPOSITION :
SB 491
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Support
None on file
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334