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