Tips of the Trade: Propriety of Filing a Demurrer in Probate Court; Helpful Tips on Timing

• Jurisdiction: California,United States
• Citation: Vol. 26 No. 2
• Publication year: 2020

TIPS OF THE TRADE: PROPRIETY OF FILING A DEMURRER IN PROBATE COURT; HELPFUL TIPS ON TIMING

By Robyn B. Christo, Esq.^* and Hilary J. Vrem, Esq.^**

The California Court of Appeal's April 10, 2019 decision in Dudek v. Dudek¹ sparked discussion among members of the probate and trust litigation bar about filing a demurrer in response to a petition brought under the Probate Code and, most specifically, when to calendar the deadline to file such a demurrer. Although there are a number of published opinions involving demurrers to petitions in probate proceedings, there do not appear to be any cases expressly stating that such a demurrer is permitted or when it must be filed.

This Tips of the Trade article focuses solely on the filing of a demurrer to a petition brought under the Probate Code when a demurrer is not expressly permitted by a provision of the Probate Code. This includes, for example, a demurrer to a petition brought under Probate Code section 850 et seq. or Probate Code section 17200. Questions regarding the filing and timing of demurrers in probate proceedings when a demurrer is expressly permitted by the Probate Code are outside the scope of this article as there are numerous published opinions discussing those issues.²

The all-important threshold issue of whether a demurrer to a probate petition is proper was addressed in a 2009 California Trusts and Estates Quarterly article ("2009 Article") in which the authors generally concluded that demurrers are allowed in probate proceedings. We agree.³ As noted in the 2009 Article, despite the lack of a specific holding permitting demurrers to petitions brought under the Probate Code, there are a number of published opinions involving such demurrers.⁴ Most recently, Dudek, which involved a demurrer to a Probate Code section 850 and section 17200 petition, appeared to cement the idea that using the Code of Civil Procedure's demurrer process to respond to a probate or trust petition is permissible. Finally, the authors' informal survey of practitioners throughout the state confirms that the majority of California superior courts hearing probate matters consider a demurrer an appropriate response to a probate/trust petition.⁵

But what about timing? To be timely, must a demurrer to a petition brought under the Probate Code be filed within 30 days of service of the petition under Code of Civil Procedure section 430.40⁶ or at or before the initial hearing under Probate Code section 1043?⁷ As discussed below, it...