Rule 8.8 Non-appearance Hearings in Probate Court - January 2008 - Trust and Estate Law

• Publication year: 2008
• Pages: 45

37 Colo.Law. 45 Colorado Lawyer 2008.

2008, January, Pg. 45. Rule 8.8 Non-Appearance Hearings in Probate Court - January 2008 - Trust and Estate Law

The Colorado Lawyer
January 2008
Vol. 37, No. 1 [Page 45]

Articles
Trust and Estate Law
Rule 8.8 Non-Appearance Hearings in Probate Court
by Matthew Laurel Trinidad

Trust and Estate articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.

Article Editors:

David W. Kirch, of David W. Kirch, P.C., Aurora - (303) 671-7726, dkirch@qwest.net; Constance D. Smith,of Rothgerber Johnson & Lyons LLP - (303) 623-9000, csmith@rothgerber.com

About the Author:

Matthew Laurel Trinidad is an associate at Chorney &amp Millard LLP where he practices in estate planning and administration - (303) 792-5048 mtrinidad@chorneymillard.com. He recently was the law clerk for Hon. C. Jean Stewart, Chief Judge of the Denver Probate Court. The author thanks the following for providing the valuable information used in this article: Judge C. Jean Stewart and the staff at the Denver Probate Court; Judge J Steven Patrick; Judge Jill Mattoon; Judge Michael Singer; Judge Stanley Brinkley; Judge Martin Gonzales; Judge Jon Kolomitz; Judge David Bottger; Magistrate Barbara Hughes; Magistrate Sandra Franklin (retired); Linda Riggle; John Lauce; Rene Cartier; Joyce Elder; Shelly Agos; Judy Marez; Camille Townsend; John Berman; and David W. Kirch.

Non-appearance hearings are fundamental to the practice of law in Colorado probate courts. This article explains the basics of Rule 8.8, describes the non-appearance process in the Denver Probate Court, and provides practical guidance with respect to conducting non-appearance proceedings.

A non-appearance hearing is a procedural device that facilitates the efficient administration of routine and unopposed probate matters that require a court order. A time and date is set for the "hearing," but no one is expected or required to appear. No audience will be given by the court to a party who does appear. Rather, the proceeding gives interested persons the opportunity to file an objection; if no one files an objection at or before the time of the non-appearance hearing, the court will make a ruling and issue an order. This order will have the same effect as an order following an appearance hearing. Because most non-appearance settings properly involve routine and uncontested matters, courts generally address non-appearance matters in a timely fashion.

Purpose of Non-Appearance Hearings

Unlike most civil matters, probate cases are often administrative proceedings with no contested issues. Even contested probate matters have non-contested components. Further, unlike the filing of a complaint in a civil matter, filing a petition in probate generates no responsive deadline. Consequently, courts sitting in probate have no particular way of knowing when a petition is ready for ruling.

Colorado courts have busy dockets. Few courts have the resources to study the substance of motions and petitions until required to do so, either at the completion of the briefing schedule or at an appearance hearing. The demands of everyday business often prevent courts from ruling on motions or petitions at the first possible moment. Courts tend to address matters in turn, so routine or uncontested matters often fall behind matters that require more exhaustive study or immediate attention.

Non-appearance hearings resolve many of these inefficiencies. Without the benefit of the non-appearance procedure, routine and unopposed probate matters can languish for months while the briefing schedule and other court business delay a ruling. Meanwhile, court staff needlessly spend time and energy tracking motions and petitions in a time-intensive process.

Overview of the Non-Appearance Process

Colorado Rule of Probate Procedure 8.8 (Rule 8.8) sets forth the requirements for proceeding by means of a non-appearance hearing. A non-appearance motion or petition(fn1) must be "routine and . . . expected to be unopposed."(fn2) A petitioner or moving party can set a non-appearance hearing by providing notice on form CPC 2-N "Notice...