What is an Ex Parte Hearing

Emily just lost her mother, and she’s devastated. She thought she had a simple will, but her brother, Dax, found a handwritten codicil – a change to the will – that completely cuts Emily out. Dax rushed to court, filed a petition to admit the codicil, and now Emily is facing a hearing without any time to respond. If Emily misses this hearing, she could lose her entire inheritance, costing her potentially hundreds of thousands of dollars. This isn’t a full trial, but it’s a critical moment that demands immediate attention.

What Exactly Is an Ex Parte Hearing in Probate?

An ex parte hearing, Latin for “from one side,” is a court proceeding where only one party presents their case to the judge. In probate, these hearings happen frequently, and they’re often scheduled on very short notice. It’s a bit different than the “full-blown” evidentiary hearings where both sides present witnesses and evidence. Usually, it’s a request for an immediate order – like admitting a will or codicil, appointing a temporary administrator, or dealing with an urgent property issue.

The speed is the danger. Because only one side is present, the court doesn’t have the benefit of hearing opposing arguments. That’s why, as an Estate Planning Attorney and CPA with over 35 years of experience in Corona, California, I drill into my clients the importance of understanding these procedures. And as a CPA, I’m uniquely positioned to understand the tax implications of even seemingly simple probate issues – like ensuring a proper step-up in basis for inherited assets to minimize capital gains.

Why Would the Court Hold a Hearing Without Notice?

Generally, California courts require proper notice to all interested parties before any hearing. However, Probate Code § 1220 allows for exceptions when an emergency exists or when strict adherence to notice rules would cause undue delay. Common examples include:

Urgent Preservation of Assets: If a property is at risk of being lost or damaged, the court might hold an ex parte hearing to authorize immediate action, like selling the property or obtaining insurance.
Appointment of a Temporary Administrator: If the named executor is unable or unwilling to serve immediately, the court can appoint a temporary administrator to safeguard assets until a permanent one is appointed.
Admitting a Will for Immediate Needs: As in Emily’s case, a petition to admit a will or codicil can be heard ex parte, though this is often the subject of a later challenge.

However, even in these situations, there are limits. The petitioner (the person filing the petition) still has a duty to demonstrate to the court that the ex parte relief is truly necessary and that attempts were made to provide notice whenever possible.

What Happens if You Miss an Ex Parte Hearing?

This is Emily’s biggest fear, and rightfully so. If you fail to appear at an ex parte hearing where you have an interest, the court can – and likely will – issue an order based solely on the information presented by the other side.

Under Probate Code § 1220, if you missed a hearing because you weren’t told about it, the order may be void. However, proving you didn’t receive proper notice—the Notice of Hearing (Form DE-120) sent at least 15 days prior with a Proof of Service filed with the court—can be an uphill battle. The court will generally assume the petition followed proper procedure.

What Can You Do to Fight an Ex Parte Order?

Don’t panic. You have options, but you need to act quickly.

Motion to Set Aside: You can file a Motion to Set Aside the ex parte order, arguing that you were not properly noticed or that the court abused its discretion. This motion requires strong evidence and a compelling legal argument.
Objection: You can file a formal objection to the petition itself, outlining your reasons for opposing the order. Probate Code § 1043 allows you to object orally at a subsequent hearing, although the court will likely require a written objection within 30 days.
Supplement to Petition: Often, ex parte orders are based on incomplete information. You can file a Supplement to Petition – a verified, sworn statement – correcting any inaccuracies and presenting your side of the story. This is particularly important if the initial petition was misleading or failed to disclose crucial facts.

It’s important to remember that even if you win your motion or objection, you may still be responsible for the other party’s attorney’s fees and costs. And that’s why, after 35+ years of practice, I always advise clients to be proactive and seek legal counsel immediately if they receive notice of any probate hearing, ex parte or otherwise.

How Does This Differ from a Regular Probate Hearing?

Standard probate hearings, unlike ex parte proceedings, typically allow for full participation by all interested parties.

Probate Code § 1022 clarifies that these are generally not “live witness” events. Instead, the court relies on affidavits or verified petitions as evidence. However, if you do want to present live testimony, the judge will likely schedule a separate “Evidentiary Hearing” or trial. Furthermore, the judge isn’t supposed to write the ‘Proposed Order’ for you (California Rule of Court 3.1312); the prevailing party prepares and submits it for the judge’s signature. Failing to do so can leave you with no official court order, even if the judge verbally agreed with your position.

And remember, while the “emergency” rules have evolved, California law now permanently allows for remote appearances in probate hearings, provided you give notice (Code of Civil Procedure § 367.75). However, the judge retains discretion to require specific personal appearances for evidentiary hearings or trials.

How do enforcement rules in California probate court shape outcomes for heirs and fiduciaries?

California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.

 
• Court Battles: Prepare for probate litigation if agreement fails.

 

• Document Challenges: Understand the grounds for will contest process.

 

• Cross-Over: Navigate complex probate and trust disputes.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on California Probate Hearings

• Oral Objections (The “Stop” Button): California Probate Code § 1043
  This is the most important statute for beneficiaries. It grants an interested person the right to appear at the hearing and object orally to the petition. Once an oral objection is made, the court generally must continue the hearing to allow time for written objections to be filed.
• Remote Appearances (Zoom/CourtCall): California Code of Civil Procedure § 367.75
  Modern probate hearings are often hybrid. This code section governs the right to appear remotely. While convenient, note that the court can typically require a physical appearance for “evidentiary” hearings where witness credibility is being judged.
• Affidavits as Evidence: California Probate Code § 1022
  Unlike criminal court, probate hearings rely heavily on paper. A verified petition or an affidavit is admissible as evidence in an uncontested probate hearing. This is why “clearing your notes” in writing is more important than your oral argument.
• Notice of Hearing Requirements: California Probate Code § 1220
  The court’s jurisdiction depends on this. The petitioner must mail notice of the hearing at least 15 days in advance to all interested parties. If the “Proof of Service” is not filed or is defective, the judge cannot legally hold the hearing.
• Lodging the Proposed Order: California Rules of Court 3.1312
  A common rookie mistake is showing up without the paperwork. The “Proposed Order” (the document the judge signs) should generally be lodged with the court before the hearing. If the judge approves your petition but has nothing to sign, your Letters cannot be issued.
• Proving the Will (Witnesses): California Probate Code § 8220
  If a Will is contested, or if it is not “self-proving” (lacking a proper attestation clause), the court may require the testimony of a subscribing witness at the hearing to prove the Will is authentic.