State Codes and Statutes

State Codes and Statutes

Statutes > California > Prob > 1040-1051

PROBATE CODE
SECTION 1040-1051



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.



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.


1042.  A hearing under this code shall be on notice unless the
statute that provides for the hearing dispenses with notice.



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.



1044.  The petitioner or other party affirming is the plaintiff and
the party objecting or responding is the defendant.



1045.  The court may continue or postpone any hearing, from time to
time, in the interest of justice.



1046.  The court shall hear and determine any matter at issue and
any response or objection presented, consider evidence presented, and
make appropriate orders.



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.



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.



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.



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,
mailing, or personal delivery 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.




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.