How to Put My Case Back on the Calendar

I recently spoke with Allen, and his world was falling apart. He’d been diligently pursuing a probate case for his mother’s estate, but a critical misstep with a codicil – a change to the original will – meant the judge had stricken the document from consideration. The judge wasn’t ruling against Allen, simply stating the codicil wasn’t properly before the court. Allen had spent months preparing, incurred substantial legal fees, and now faced the prospect of starting over. He was understandably devastated, and the financial setback was significant.

After 35+ years as an Estate Planning Attorney and CPA here in Moreno Valley, I’ve seen this scenario play out far too often. Probate can be a complicated process, and a missed deadline, a procedural error, or an improperly submitted document can bring everything to a screeching halt. While frustrating, these setbacks aren’t necessarily fatal. It is often possible to get your case back on the calendar, but it requires swift and strategic action.

What Happens When a Hearing is Continued or Struck?

A “stricken” document isn’t necessarily “thrown out” forever. It simply means the court won’t consider it right now. This usually happens when there’s a procedural problem—the document wasn’t served correctly, a required signature is missing, or a filing deadline was missed. A continuance, on the other hand, is a postponement of the entire hearing. Often, continuances are granted because of attorney conflicts, unavailability of a key witness, or a need for additional discovery. Both situations leave you in a holding pattern, and regaining momentum is key.

How Long Do I Have to Fix the Problem?

There’s no single answer, as it depends on the reason for the delay and the court’s discretion. Generally, you need to act immediately. Don’t wait for the court to notify you of a new hearing date. Take the initiative. The sooner you address the issue and demonstrate to the court that you’re proactively working to resolve it, the better your chances of a favorable outcome. Sometimes, the judge will set a new hearing date at the time of the continuance or striking. If not, you will need to file a request.

Filing a Request for Rehearing or to Reset the Hearing

The most common way to get your case back on the calendar is to file a formal request with the court. This usually takes the form of a “Motion to Reinstate” or a “Request to Reset Hearing.” The specific title may vary by county, so check your local court rules. This motion must clearly state:

The reason the case was stricken or continued. Be specific and honest.
What steps you’ve taken to correct the error. For example, if the codicil was improperly served, explain that you’ve now properly served all interested parties.
A proposed new hearing date. Check your calendar and suggest a few dates that work for you. Be realistic and allow the court sufficient time to consider your request.
A legal basis for your request. Cite relevant Probate Code sections supporting your claim that the case should be reinstated.

Remember, simply explaining the issue to the judge in court isn’t enough. You MUST file this motion with the court.

Clearing Probate Notes – The “Secret” Step

Most hearing delays are caused by uncleared “Probate Notes.” You cannot simply explain the issue to the judge in court; you MUST file a verified Supplement to Petition in writing at least 2-3 court days before the hearing to satisfy the Probate Examiner. These notes are generated by the probate examiner who reviews your filings for accuracy and completeness. They flag any discrepancies or missing information that needs to be addressed. Ignoring these notes will almost certainly result in your case being continued again and again.

What Evidence Should I Bring to the Hearing?

Standard probate hearings are generally not “live witness” events. An affidavit or verified petition is received as evidence. If you want to put a witness on the stand to testify, the judge will typically continue the matter to a set “Evidentiary Hearing” or trial date. However, be prepared to provide supporting documentation at the hearing on your motion to reinstate. This could include proof of service, copies of corrected documents, and any other evidence that demonstrates you’ve rectified the issue that caused the initial delay.

What If Another Party Objects?

You do not need to file a lawyer-written brief to stop a petition at the first hearing. You can appear and object orally. The court must then pause and give you a continuance (usually 30 days) to file your written objection. Be prepared to address any objections raised by opposing parties. Understand their concerns and have a well-reasoned response ready. Present your arguments clearly and respectfully.

The Importance of the Proposed Order

The judge generally does not write the order for you. The prevailing party is responsible for preparing the “Proposed Order” and lodging it with the court before the hearing. If the judge grants your petition but there is no Order in the file to sign, you leave with nothing. This is a crucial step often overlooked by pro per litigants (those representing themselves). A well-drafted proposed order ensures that the court’s decision is clearly documented and enforceable.

What Happens If I Miss a Hearing Altogether?

If you missed a hearing because you weren’t told about it, the order may be void. The petitioner has a strict duty to mail the Notice of Hearing (Form DE-120) to all interested persons at least 15 days prior. A “Proof of Service” missing from the file will stop the hearing immediately.

As a CPA as well as an attorney, I always emphasize the tax implications of probate. Correcting errors and expediting the process can help preserve the “step-up in basis” for inherited assets, minimizing capital gains taxes for your beneficiaries. Proper valuation of assets is also crucial, and I can leverage my accounting expertise to ensure accurate reporting.

Getting a case back on the calendar requires diligence, attention to detail, and a thorough understanding of probate procedures. It’s not always easy, but it is often achievable. Don’t let a temporary setback derail your efforts to administer an estate efficiently and effectively.

What determines whether a California probate estate closes smoothly or turns into litigation?

The path through California probate is rarely a straight line; it requires precise adherence to statutory deadlines, accurate asset characterization, and strict fiduciary compliance. Without a clear roadmap, what begins as a standard administrative proceeding can quickly dissolve into a costly battle over interpretation, valuation, and beneficiary rights.

• Court Battles: Prepare for litigating probate disputes if agreement fails.
• Document Challenges: Understand the grounds for contesting a will.
• Cross-Over: Navigate complex trust litigation in probate.

A stable probate administration outcome usually follows from clarity, consistency, and readiness for court review, especially when multiple stakeholders and competing interpretations are involved. When documentation supports enforcement and timelines are respected, families are less likely to face preventable escalation.

Verified Authority on California Probate Hearings

• Oral Objections (The “Stop” Button): California Probate Code § 1043
  This is the most important statute for beneficiaries. It grants an interested person the right to appear at the hearing and object orally to the petition. Once an oral objection is made, the court generally must continue the hearing to allow time for written objections to be filed.
• Remote Appearances (Zoom/CourtCall): California Code of Civil Procedure § 367.75
  Modern probate hearings are often hybrid. This code section governs the right to appear remotely. While convenient, note that the court can typically require a physical appearance for “evidentiary” hearings where witness credibility is being judged.
• Affidavits as Evidence: California Probate Code § 1022
  Unlike criminal court, probate hearings rely heavily on paper. A verified petition or an affidavit is admissible as evidence in an uncontested probate hearing. This is why “clearing your notes” in writing is more important than your oral argument.
• Notice of Hearing Requirements: California Probate Code § 1220
  The court’s jurisdiction depends on this. The petitioner must mail notice of the hearing at least 15 days in advance to all interested parties. If the “Proof of Service” is not filed or is defective, the judge cannot legally hold the hearing.
• Lodging the Proposed Order: California Rules of Court 3.1312
  A common rookie mistake is showing up without the paperwork. The “Proposed Order” (the document the judge signs) should generally be lodged with the court before the hearing. If the judge approves your petition but has nothing to sign, your Letters cannot be issued.
• Proving the Will (Witnesses): California Probate Code § 8220
  If a Will is contested, or if it is not “self-proving” (lacking a proper attestation clause), the court may require the testimony of a subscribing witness at the hearing to prove the Will is authentic.