Code Section Group

Probate Code - PROB

DIVISION 3. GENERAL PROVISIONS OF A PROCEDURAL NATURE [1000 - 1312]

  ( Division 3 enacted by Stats. 1990, Ch. 79. )

PART 1. GENERAL PROVISIONS [1000 - 1064]

  ( Part 1 enacted by Stats. 1990, Ch. 79. )

CHAPTER 3. Hearings and Orders [1040 - 1051]
  ( Chapter 3 enacted by Stats. 1990, Ch. 79. )

1040.
  

This chapter governs the hearing of all matters under this code, except where the statute that provides for the hearing of the matter prescribes a different procedure.

(Enacted by Stats. 1990, Ch. 79.)

1041.
  

When a petition, report, account, or other matter that requires a hearing is filed with the court clerk, the clerk shall set the matter for hearing.

(Enacted by Stats. 1990, Ch. 79.)

1042.
  

A hearing under this code shall be on notice unless the statute that provides for the hearing dispenses with notice.

(Enacted by Stats. 1990, Ch. 79.)

1043.
  

(a) An interested person may appear and make a response or objection in writing at or before the hearing.

(b) An interested person may appear and make a response or objection orally at the hearing. The court in its discretion shall either hear and determine the response or objection at the hearing, or grant a continuance for the purpose of allowing a response or objection to be made in writing.

(c) A request for a continuance for the purpose of making a written response or objection shall not itself be considered as a response or objection, nor shall the failure to make a response or objection during the time allowed be considered as a response or objection.

(Enacted by Stats. 1990, Ch. 79.)

1044.
  

The petitioner or other party affirming is the plaintiff and the party objecting or responding is the defendant.

(Enacted by Stats. 1990, Ch. 79.)

1045.
  

The court may continue or postpone any hearing, from time to time, in the interest of justice.

(Enacted by Stats. 1990, Ch. 79.)

1046.
  

The court shall hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders.

(Enacted by Stats. 1990, Ch. 79.)

1047.
  

Except as otherwise provided in this code, an order made in a proceeding under this code need not recite the existence of facts, or the performance of acts, upon which jurisdiction depends, but need only contain the matters ordered.

(Enacted by Stats. 1990, Ch. 79.)

1048.
  

(a) Except as provided in subdivision (b), orders shall be either entered at length in the minute book of the court or signed by the judge and filed.

(b) An order for distribution shall be entered at length in a judgment book or other permanent record of the court.

(Enacted by Stats. 1990, Ch. 79.)

1049.
  

An order may be enforced as provided in Title 9 (commencing with Section 680.010) of Part 2 of the Code of Civil Procedure.

(Enacted by Stats. 1990, Ch. 79.)

1050.
  

The judgment roll in a proceeding under this code consists of the following papers, where applicable:

(a) In all cases:

(1) The petition, application, report, or account that initiates a particular proceeding.

(2) Any order directing notice of the hearing to be given.

(3) Any notice of the hearing, and any order to show cause made in the proceeding, with the affidavits showing publication, posting, or delivery pursuant to Section 1215 of the notice or order as may be required by law or court order.

(4) Any citation, in case no answer or written opposition is filed by a party entitled, by law or court order, to notice of the proceeding by citation, with the affidavit or proof of service and, if service of the citation is made by publication, the affidavit of publication and the order directing publication.

(5) Any finding of the court or referee in the proceeding.

(6) The order or statement of decision made in the proceeding.

(7) Any letters, as defined in Section 52.

(b) If an answer, demurrer, written opposition, or counter petition is filed in a proceeding:

(1) Pleadings and papers in the nature of pleadings.

(2) Any orders striking out a pleading in whole or in part.

(3) Any order made on demurrer, or relating to a change of parties, in the proceeding.

(4) The verdict of the jury, if any.

(c) If the proceeding is for the probate of a will, the will.

(d) If the proceeding is a contest of a will, for the revocation of the probate of a will, or for a preliminary or final distribution of the estate under a will:

(1) The will.

(2) The order admitting the will to probate.

(e) If the proceeding is for the settlement of the final account of a personal representative or for the final distribution of an estate, the affidavit showing publication of notice to creditors.

(Amended by Stats. 2017, Ch. 319, Sec. 13. (AB 976) Effective January 1, 2018.)

1051.
  

(a) In the absence of a stipulation to the contrary between parties who have filed pleadings in a proceeding under this code, there shall be no ex parte communications between any party, or attorney for the party, and the court concerning a subject raised in those pleadings, except as permitted or required by law.

(b) Notwithstanding subdivision (a), in any case upon which the court has exercised its jurisdiction, the court may refer to the court investigator or take other appropriate action in response to an ex parte communication regarding either or both of the following: (1) a fiduciary, as defined in Section 39, about the fiduciary’s performance of his or her duties and responsibilities, and (2) a person who is the subject of a conservatorship or guardianship proceeding under Division 4 (commencing with Section 1400). Any action by the court pursuant to this subdivision shall be consistent with due process and the requirements of this code. The court shall disclose the ex parte communication to all parties and counsel. The court may, for good cause, dispense with the disclosure if necessary to protect the ward or conservatee from harm.

(c) The Judicial Council shall, on or before January 1, 2008, adopt a rule of court to implement this section.

(d) Subdivisions (a) and (b) of this section shall become operative on January 1, 2008.

(e) A superior court shall not be required to perform any duties imposed by this section until the Legislature makes an appropriation identified for this purpose.

(Amended by Stats. 2011, Ch. 10, Sec. 11. (SB 78) Effective March 24, 2011.)

PROBProbate Code - PROB