Personal Injury, Probate, Employment, & Complex Litigation


Where To File Your Probate Actions

Probate filings are part of our civil court system; however, they are simultaneously separated from the civil court. Confusing? You bet!

Generally speaking, the California Rules of Civil Procedure are controlling, except in the occasion when there are contradictory Probate Code sections, in which case Probate Code trumps the CCP (Code of Civil Procedure section 1000). Because a probate action is not technically a hostile action (case titles are “In Re:” or “In the Matter of:” not “Person X v. Person Y”) it makes sense that there are different rules in place. And because there are different rules, it makes sense that there should be a separate courtroom.

That is why when you file a probate action, you must file it with the Probate Court. Now, depending on the county, that can be a department within a courthouse, so you can file in the usual filing window, or, it can be an entirely separate courthouse and all your filings must be filed there. This is dependent on the county, so call the clerk’s office in advance of filing.

A lot of times someone will accidentally file a proceeding in an incorrect courthouse, when this happens the judge will either transfer the case to the correct department, or more likely (and procedurally correctly) will dismiss the case without prejudice (meaning you can file again) and you will then need to start the filing all over again in the correct department. This should be an automatic occurrence from the court as the Probate Court has exclusive jurisdiction over probate actions. However, it may require a motion to be filed for the court to know that the action was filed in the wrong court.

Now, here is the tricky part, there are times when you will have both a probate action and a civil tort action arising from the same facts. This is most common in an undue influence/financial elder abuse case. If you are the petitioner/plaintiff, you have a choice of either filing these two actions together in the Probate Department or filing the probate action in the Probate Department and the tort action in the general Civil Litigation Department. The reason is because the Probate Department can hear general civil litigation complaints connected to probate actions, but the Civil Litigation Department cannot hear related probate actions.

Where to file your probate action can be tricky and confusing, that is why it is best to always contact a lawyer before filing. 

Evan Cote