Estate of Ermalinda Avila

Case Number

24PR00264

Case Type

Hearing Date / Time

Wed, 08/28/2024 - 08:30

Nature of Proceedings

Petition for Probate w/ Letters of Administration (Contested)

Tentative Ruling

Probate Notes:

Appearances required.  The following is noted for the Court at the hearing:

Evidentiary Hearing.  On April 29, 2024, Evelyn Catherine Avilla Lee filed a Petition for Probate and Letters Testamentary.  That petition received written objection by Jeffrey Avila Vargas on July 8, 2024, which places this matter at issue requiring Evidentiary Hearing to resolve. (In re Estate of Lensch (2009) 177 Cal.App.4th 667, 676; Conservatorship of Farrant (2021) 67 Cal.App.5th 370, 377.)

Defective Service of Summons re: Vargas Will Contest.  The will being sought by Evelyn Catherine Avilla Lee for admission to probate is contested by Mr. Vargas. 

When a will is contested, Probate Code section 8250 requires the objecting party to file a written objection to probate of the will, and a copy of the objection along with a summons be served on all those entitled to notice listed in section 8110 [all entitled to take by intestate, and each devisee, executor, and alternative executor].  The summons must be served according to the procedures in the Code of Civil Procedure Title 5, Part 2, Chapters 3 and 4 [§ 412.10 et seq and 413.10] which requires personal service. 

The Proof of Service on file in this case shows only mailed service was given.  This defect can be cured by personal appearance of “each heir of the decedent” (Prob. Code, §8110(a)) and “[e]ach devisee, executor, and alternative executor named in any will being offered for probate” (Prob. Code, §8110(b)).

Improper “Reply” re: Vargas Will Contest.  In response to Mr. Vargas’ will contest, Ms. Lee filed a “Reply” without any citation to authority for the Reply. What a Petition seeking the admission of a will to Probate is contested, the petitioning party may file an answer to the objection, or demur, within 30 days after service of the summons.  (Prob. Code, § 8250, subd(a) and 8251, subd. (a).)  There is no authority in all of California law for any responsive pleading to a will contest, other than an Answer or Demurrer.  Thus, Ms. Lee’s “Reply” was not filed in conformity with California Law, and should be stricken pursuant to CCP section 436(b).

If a party fails to respond to a properly served summons within 30 days, the case is still at issue, but the non-responding party loses the right to further contest the appointment or the will.  (Prob. Code, § 8251, subd. (c).)

Due to staffing limitations, processing times may be delayed. To assist in processing, attorneys and parties should include the next court date in the “Filing Description” field provided by the electronic service provider. That field is also used for further descriptions of the document being e-filed, so be sure to put the calendar date FIRST in the field – BEFORE any further description of the document being e-filed (e.g.: 06/28/16 For XYZ).

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 161 956 1423

Passcode: 137305