How to Oppose a Probate Petition for Possession and Control of Estate Property — California

Short overview: In California probate cases, a party can petition the court for possession and control of estate property. You can challenge or try to dismiss such a petition by filing a written opposition, raising legal and factual defenses, asking the court for interim protections, and presenting evidence at the hearing. The court decides based on the Probate Code, the petition’s supporting papers, and the evidence you present. This article explains the common grounds to oppose a petition, the practical steps to take, and immediate actions to protect estate assets.

Statutory reference: California Probate Code provides the framework for possession and control of estate property; see Probate Code §850 and following sections for the statutory scheme: Probate Code §850 (and following).

Who may be affected and who may oppose

People with a right to notice or an interest in the estate usually can oppose: heirs, beneficiaries, nominated executors/administrators, creditors, trustees, or a surviving spouse. If you received the petition or notice, act quickly. If you did not receive notice but have an interest, you may be able to seek relief once you learn of the proceedings.

Common legal and factual grounds to challenge a petition

• Lack of jurisdiction or improper venue.
• Improper service or failure to give required notice to interested persons.
• Petitioner lacks authority (not the personal representative, not appointed, no written authority).
• Property is not estate property (e.g., held in joint tenancy, payable-on-death account, trust property, or community property with right of survivorship).
• Fraud, undue influence, or forgery affecting title or the petition’s basis.
• Insufficient factual support or missing documentation (deeds, account statements, title documents).
• Failure to post bond or to seek required court approval for transfers.
• Priority conflicts (creditor claims, elder abuse freezes, or pending probate conservatorship matters).
• Violation of fiduciary duties or potential self-dealing by the petitioner.

Step-by-step: How to challenge or move to dismiss

1. Read the petition and notice carefully. Note the hearing date, the legal basis asserted, the relief requested, and whether the petitioner attached deeds, account records, or affidavits. The notice often says how and when objections must be filed.
2. Confirm whether you received proper service and whether you are an interested person. If service was improper, that can be a ground to void action and require re-notice.
3. File a written opposition or objection. In California probate court you typically file a written objection or response with the probate clerk and serve it on the petitioner and all interested persons. The objection should state the factual and legal grounds and include exhibits (title documents, letters, account records). Follow the local court’s filing procedures and deadlines. If you miss the deadline but can show good cause, explain why and ask the court for relief.
4. Request interim relief if assets are at risk. If the property may be dissipated or transferred, ask the court for temporary relief (e.g., an order preventing transfer, appointment of a receiver, or a temporary restraining order). For urgent preservation, you may need to file an ex parte application, stating immediate harm.
5. Use discovery and demand documents. After you file an objection, you can request documents, deposition testimony, and accountings to prove your claims (for example, to show title belongs to a trust or joint tenant). Probate proceedings allow court-ordered accountings and discovery related to fiduciary actions.
6. Attend the hearing and present evidence. Be prepared to explain why the petition should be denied or narrowed. Submit declarations, authenticated records, and live testimony if necessary. If the petitioner lacks proof of title or authority, emphasize that at the hearing.
7. Seek dismissal or limited relief. Ask the court to dismiss the petition for lack of standing, jurisdiction, or proof. Alternatively, ask the court to limit the relief (for example, permit only an immediate protective action rather than full control of property) or to require a bond and an accounting before the petitioner gets possession.
8. Appeal or seek relief after the court’s order. If the court grants the petition improperly, you may have appellate or post-judgment remedies, including motions to set aside for mistake, fraud, or lack of notice. Act quickly to preserve appellate rights and file any required bond for appeal.

Evidence and documents to gather

• Title documents (deeds, recorded transfers), trust documents, beneficiary designations, and account statements.
• Copies of the petition, all notices, and proof of service.
• Communications showing intent or ownership (emails, letters, receipts).
• Affidavits from witnesses who can attest to ownership, signatures, or undue influence.
• Any prior court orders, conservatorship or guardianship papers, and creditor claims.

Practical considerations and timelines

Exact filing deadlines and local practices differ by county. Probate courts often have local rules about form, deadlines, and required declarations. Deadlines for objecting are usually set by the notice on the petition. If you face an urgent risk of asset loss, ask for emergency ex parte relief — courts will consider immediate harm.

When to consult a lawyer

Consider seeking an attorney when:

• Large or unique assets are at risk (real estate, business interests, or large bank accounts).
• There are allegations of fraud, undue influence, or competing wills/trusts.
• The case requires complex discovery, cross-border title issues, or an appeal.

If cost is a concern, look for free or low-cost probate advice clinics, law school clinics, or local bar association referrals.

Sample defenses you might assert in your written objection

• Petitioner lacks legal authority to possess or control the property.
• Property is excluded from probate (owned in trust or joint tenancy), so the petition is improper.
• Improper or inadequate notice denied interested persons the opportunity to be heard.
• Evidence of fraud, forgery, or undue influence invalidates the petition’s premise.
• Petitioner failed to post a required bond or failed to request court approval for a transfer.

Reminder: The court must balance protection of estate assets with the petitioner’s legitimate needs. Courts often order an accounting, require a bond, or limit possession until disputes are resolved.

Helpful Hints

• Act quickly: probate matters move on fixed hearing dates. Preserve evidence immediately.
• Get certified copies: obtain certified copies of deeds, account records, and the petition for filing and service.
• Check service: proof of service in the court file will show who was notified and how.
• Ask the court for interim protections if you suspect asset dissipation.
• Use clear, organized exhibits and short declarations when you file an objection—judges appreciate concise records.
• Confirm local probate rules and filing procedures on the county probate court website where the case is filed.
• Document communications with the petitioner—emails and letters can be useful evidence.
• Consider mediation: if interests overlap, the court may allow settlement talks to avoid costly litigation.