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local probate rule 2

PROBATE RULE 2: NOTICES, PETITIONS, DECLARATIONS, AND ORDER

A. FORMAT OF DOCUMENTS SUBMITTED FOR FILING
B. PREPARATION OF NOTICES, PETITIONS, DECLARATIONS, ORDERS AND PRINTED PROBATE FORMS
C. SIGNATURE BY ATTORNEY
D. NOTICE
E. NOTICE TO PERSONS WHOSE ADDRESSES ARE UNKNOWN
F. PETITIONS FOR EX PARTE ORDERS
G. PROBATE ORDERS
H. ORDERS CORRECTING CLERICAL ERRORS
I. LATE FILINGS
J. FACSIMILE FILING

A. FORMAT OF DOCUMENTS SUBMITTED FOR FILING

Documents that exceed 10 pages shall be submitted held by binder clips or two prong fasteners.

Exhibit attachments to pleadings shall be separated by a standard size sheet of paper with a title identifying the sequence of the exhibit. No tabs shall extend below the bottom of the page.

(Eff. 7/01/12)

B. PREPARATION OF NOTICES, PETITIONS, DECLARATIONS, ORDERS, AND PRINTED PROBATE FORMS

Only current Judicial Council forms, local forms authorized by Santa Clara County, or pleadings typed on pleading paper in compliance with the CRC are acceptable for filing. Judicial Council forms are available on the Judicial Council website http://www.courts.ca.gov .

(Eff. 1/01/09)

C. SIGNATURE BY ATTORNEY

(Eff. 1/01/09)

In addition to the requirements of CRC 7.103, an attorney who prepares a petition or other pleading (including those on Judicial Council forms) must sign the document.

(Eff. 1/01/04)

D. NOTICE

Although the Probate Code may require the probate clerk to cause notice of hearing to be given, the practice in Santa Clara County is for the petitioner or attorney to cause notice to be served and file proper proof of service. See also CRC 7.50 through 7.54.

(Eff. 1/01/04)

E. NOTICE TO PERSONS WHOSE ADDRESSES ARE UNKNOWN

Where the address of a person to whom notice is required to be mailed or delivered in a probate proceeding, including guardianships conservatorships, and trusts, is unknown, the court will require an affidavit or declaration stating with specificity the efforts that have been made to locate the person, as described in CRC 7.52.

(Eff. 1/01/04)

F. PETITIONS FOR EX PARTE ORDERS

Unless notice is specifically required by the Probate Code, Court order, or these rules, matters may be presented ex parte.

All ex parte petitions and other ex parte pleadings and supporting documentation must first be presented to the Probate Examiner's office for review.

An ex parte petition or application must contain sufficient facts to justify the orders requested. See also CRC 7.55.

(Eff. 1/01/09)

The procedures for submitting ex parte matters to the Probate Court, except in temporary guardianships and conservatorships, are as follows:

(1) The petitioner must first determine if there is anyone who would oppose the matter if he or she knew about it.

(2) If there will be no objection, and the matter is:

  • Not urgent: Submit the petition to the Probate Examiner's office.

  • Urgent: Contact the Probate Examiner's office for an appointment

(3) If there will be an objection, and the matter is:

  • Not urgent: Do not submit it ex parte. Instead, have the matter set for a noticed hearing on the regular Probate calendar.

  • Urgent: Contact the Probate Examiner's office to discuss how the matter will be specially set for hearing. In most cases, the petitioner will be referred to the Probate Judge's courtroom clerk for coordination with the Judge's calendar and the opposition a time when the matter may be heard by the Court.

(4) Notice: A notice and copy of the petition must be served on all parties 24 hours before presenting the ex parte petition to the Court. The petition and a proposed order shall be presented to the Probate Examiner's office with a declaration regarding giving notice. If the matter does not require immediate action, defined to mean action within the day the matter is presented to the Court, the Court will allow 48 hours, not including weekends or holidays, for the opposing party to present opposition. The Court may dispense with notice for good cause shown.

(5) Temporary guardianships and conservatorships: The above procedures do not apply to temporary guardianships and conservatorships. See Sections 11.T and 12.J of these Rules.

(Eff. 1/01/09)

G. PROBATE ORDERS

All orders in probate matters must be complete and bear the noticed hearing date and department. A decree of distribution must be drawn so that the full extent of the decree may be determined without reference to the petition on which it is based or to other documents, such as the decedent's will. If the distribution includes any interest in real property, the legal description, including the assessor's parcel number, must be included in the body of the decree or in an attachment incorporated by reference. Any proposed Probate Order submitted to the Court for signature must contain a footer with the title of the order on every page, including the signature page, unless it is a Judicial Council form. In addition, the Court signature and date lines must not be on a page by themselves; the signature page must contain some text of the order. If a matter is taken off calendar, any orders submitted will be returned to the party and a new order must be submitted for the re-noticed hearing date. For orders in uncontested matters, see Section 1.I.

(Eff. 7/01/10)

H. ORDERS CORRECTING CLERICAL ERRORS

If, through inadvertence, the signed order fails to state the order actually made by the Court, and such inadvertence is brought to the attention of the Court, the Court may make an order correcting the mistake. The party must submit an affidavit or a declaration stating the reason for the amended order. The revised order must take the form of an amended order, setting out the entire order in full as corrected.

(Eff. 1/01/09)

I. LATE FILINGS

All pleadings, documents, and other papers filed within 10 days of the scheduled hearing date must be delivered directly to the Probate Examiner's office for review.

J. FACSIMILE FILING

(1) GENERAL POLICY

The Probate Department hereby adopts CRC 2.300 et seq., allowing for the facsimile filing of documents in matters covered by the Probate Rules.

(Eff. 1/01/08)

(2) AGENCY FILING

Pursuant to CRC 2.303, the court will accept for filing all documents submitted by fax filing agencies except those documents specified in CRC 2.300 (b).

(Eff. 1/01/13)

a. The Court elects to allow the filing of documents by facsimile transmission through an automated facsimile filing service, which will send facsimiles directly to the Court.. Except as provided below for elder abuse filings and those filings made at the request of the Court, persons are not permitted to transmit materials from their own facsimile machines to the Court for filing.

(Eff. 1/01/13)

b. The facsimile machine of the independent agency must be available 24 hours a day, although filings received by the agency after 4:00 p.m. or on court holidays shall be deemed filed on the next court day.

(3) ELDER ABUSE DIRECT FILINGS

a. Pursuant to CRC Rule 2.304, et seq., authorized Elder Abuse service providers may directly file restraining order applications, temporary restraining orders, and proofs of personal service by fax. Such filings shall be submitted to a number to be designated by the Court.

(Eff. 1/01/12)

b. A facsimile filing shall be accompanied by an Elder Abuse Facsimile Filing Cover Sheet (Attachment PB-4058 ). This shall be the first page transferred, to be followed by any special handling instructions required. The Court is not required to keep a copy of the cover sheet and attachment.

(Eff. 1/01/12)

c. Each document transmitted for direct filing with the Court shall contain the phrase “by fax” immediately below the title of the document. Each service provider shall also include its applicable PIN number where indicated on the Elder Abuse Facsimile Filing Cover Sheet.

(Eff. 1/01/12)

d. There shall be no facsimile filing fee for the filing of elder abuse restraining orders.

(Eff. 1/01/12)

(4) DIRECT FILINGS MADE AT THE REQUEST OF THE COURT

Pursuant to CRC Rule 2.304, only documents specifically requested by the Court, that do not require a filing fee, may be filed directly by parties from their own facsimile machines and be deemed an original by faxing to the Court's facsimile number at 1-408-882-2694.

(Rff. 1/01/13)

 

      (5) SIGNATURES

      a. A person who files or serves a signed document by fax pursuant to the Code of Civil Procedure and this Rule represents that the original signed document is in his or her possession and control.

      (6) SERVICE PROVIDERS

      a. Service providers shall be required to sign a Memorandum of Understanding with the Court and attend periodic training sessions regarding elder abuse restraining orders and court procedures.

      b. The Court shall maintain a list of approved service providers for facsimile filing of elder abuse cases. Each approved service provider shall be assigned a PIN number for identification purposes.

      (Eff. 1/01/12)



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