BILL ANALYSIS �
SB 491
Page 1
SENATE THIRD READING
SB 491 (Evans)
As Amended March 25, 2011
Majority vote
SENATE VOTE :40-0
JUDICIARY 9-0
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|Ayes:|Feuer, Wagner, Atkins, | | |
| |Dickinson, Beth Gaines, | | |
| |Huber, Jones, Monning, | | |
| |Wieckowski | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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.
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.
3)Provides for the issuance of civil summonses pursuant to
specified criteria.
FISCAL EFFECT : None
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
SB 491
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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 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
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
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, the Assembly Judiciary Committee's analysis of AB 496
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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.
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.)
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0001497