The probate court is a court that handles the administration and distribution of assets to beneficiaries when someone dies, among other matters. If you are unhappy with a probate court decision, it is possible to appeal that decision under certain circumstances, and if you win, the order will be overturned. However, if you lose your appeal, the probate court decision will remain intact, and you will need to decide if you want to appeal to an even higher court.
What are the steps in a probate appeal?
The steps in a probate appeal are outlined below. You should retain a knowledgeable probate court appeal attorney for each step of the process and advise you on the best strategies for achieving your goals.
Determine if an appealable order has been issued
The first step in a probate appeal is to analyze whether the court has issued an appealable order. California Code of Civil Procedure section 904.1 allows an appeal of any “final judgment.” It also authorizes appeals from orders:
- Granting or denying a motion to quash service of summons.
- Granting a motion to stay or dismiss the action on the grounds of inconvenient forum
- Granting a new trial.
- Denying a motion for a judgment notwithstanding the verdict.
- Granting or dissolving an injunction.
- Granting or denying a special motion to strike (also called an “Anti-SLAPP” motion).
- Granting or denying other relief that the Legislature has determined should be immediately appealed.
Additionally,California Probate Code section 1300 covers general appealable probate judgments and allows appeals from decisions entering or refusing to enter the following types of orders:
- Directing, authorizing, approving, or confirming the sale, lease, encumbrance, grant of an option, purchase, conveyance, or exchange of property.
- Settling an account of a fiduciary.
- Authorizing, instructing, or directing a fiduciary, or approving or confirming the acts of a fiduciary.
- Directing or allowing payment of a debt, claim, or cost.
- Fixing, authorizing, allowing, or directing payment of compensation or expenses of an attorney.
- Fixing, directing, authorizing, or allowing payment of the compensation or expenses of a fiduciary.
- Surcharging, removing, or discharging a fiduciary.
- Transferring the property of the estate to a fiduciary in another jurisdiction.
- Allowing or denying a petition of the fiduciary to resign.
- Discharging a surety on the bond of a fiduciary.
- Adjudicating the merits of a claim made regarding the conveyance or transfer of property.
Additionally, California Probate Code 1303 governs specific appealable orders that relate to the administration of a deceased person’s estate, which include judgments granting or refusing to grant the following orders:
- Granting or revoking letters to a personal representative, except letters of special administration or letters of special administration with general powers.
- Admitting a will to probate or revoking the probate of a will.
- Setting aside a small estate.
- Setting apart a probate homestead or property claimed to be exempt from enforcement of a money judgment.
- Granting, modifying, or terminating a family allowance.
- Determining heirship, succession, entitlement, or the persons to whom distribution should be made.
- Directing distribution of property.
- Determining that property passes to, or confirming that property belongs to, the surviving spouse.
- Authorizing a personal representative to invest or reinvest surplus money.
- Determining whether an action constitutes a contest.
- Determining the priority of debts.
- Any final order regarding proration of taxes.
If a probate court enters any of the orders listed above or enters an order refusing to issue any of these types of judgments, the decision can be appealed.
Identify the Grounds for the Appeal
When you file an appeal, the reviewing court does not conduct a brand new trial. Rather, it will review the probate court order in question for legal or factual errors. For this reason, you cannot file an appeal just because you disagree with a probate court decision. Instead, you’ll need to identify legally recognized grounds to file the appeal.
Generally, you will need to argue that the probate judge made an error in their legal analysis or procedural decisions that prejudiced your case. This means that you can’t win the appeal if the judge made a mistake, but the appellate court decides that you would have lost anyway. So, to proceed with an appeal of a probate court order, you’ll need to be able to explain the error that was made and how it changed the outcome of the case.
File a Notice of Appeal and Appellate Brief
Once you identify the grounds for your appeal, you must file a notice of appeal in the superior court in the same jurisdiction as the probate court that entered the order. So, if the probate court in L.A. County issued the decision you want to appeal, you’ll need to file the notice in the Los Angeles Superior Court. You will also be required to file an appellate brief outlining your arguments and identifying the evidence that supports them.
How long does a probate appeal decision take?
In most civil cases, you usually have to wait until a final judgment is entered before you can file an appeal. However, with a probate court appeal, you can file in the middle of the case if an appealable order has been issued. This can speed up the appellate process.
Probate appeals are also given statutory preference under section 44 of the California Code of Civil Procedure, which means they will be heard before other types of appeals. Even given this scheduling advantage, the amount of time a probate appeal takes will vary depending on factors such as the type of order that you are appealing, the facts of your case, and how busy the court is.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.