Estate of Sheila Victoria Garcia

Case Number

24PR00375

Case Type

Hearing Date / Time

Tue, 12/17/2024 - 09:00

Nature of Proceedings

Petition: Probate Will and Letters Testamentary, OSC re waiver of objection

Tentative Ruling

Probate Notes:

Appearances required.

On June 25, 2024, a Petition for Probate of the Decedent’s Will and Letters Testamentary was filed by Mary Scott. That Petition received written objection by Michael Thibault on August 19, 2024, placing this matter at issue, and 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.)  Mr. Thibault amended his objection on September 23, 2024.

Mr. Thibault’s objection appears to be contesting both the will and the appointment of Mary Scott as personal representative.  Due to the objection, the following must be submitted:

Competing Petition. A contest to a petition for administration of a decedent’s estate may involve a contest to the appointment of the personal representative, a contest to the will, or both.

When appointment of a personal representative is contested, Probate Code section 8004 requires a competing petition be filed and served in accordance with Probate Code section 8110 [15 days, mail or personal service to all entitled to take by intestate, and each devisee, executor, and alternative executor].  (Prob. Code, § 8004, subd. (a).)

There is no competing petition on file.  Objector must file a competing petition for letters of administration on form DE-111, before an evidentiary hearing can be set.

Personal Service of Summons.  When a will is contested, Probate Code section 8250 requires a written objection to probate of the will be filed, and a copy of the objection along with a summons be served to 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].

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).)  If a party fails to respond to a 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).)

No summons was issued in this case, thus the will is not properly contested until a summons is issued and personally served on the proper parties.

Appearances:

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

Meeting ID: 160 543 3416

Passcode: 5053334