Can we submit a modified small estate affidavit to the court?
Full Question:
Answer:
I'm assuming you've already filed a petition for non-small estate administration. It is possible to file a motion for dismissal to voluntarily dismiss a case, but it will be a matter of determination for the court to decide. If the probate case is dismissed it may be refiled as a small estate if the assets aren't worth more than $20,000.
The following are CA Rules of Court:
(d) Refund on voluntarily dismissed Petition for Probate
(1) A petitioner that files a Petition for Probate on or after August
18, 2003, and voluntarily dismisses the petition at any time within 90
days after it is filed and before an order granting or denying the
petition is filed, is eligible under this subdivision to receive a
refund, without interest, of all filing fees paid in excess of the filing
fees that would have been payable on the original filing date for a
Petition for Probate of an estate valued at less than $250,000.
(2) The petitioner on a dismissed Petition for Probate under (1) must
apply to the court for the refund, in accordance with the court's local
rules and practices for such payments.
Rule 3.1390. Service and filing of notice of entry of dismissal
A party that requests dismissal of an action must serve on all parties
and file notice of entry of the dismissal.
Rule 3.1342. Motion to dismiss for delay in prosecution
(a) Notice of motion
A party seeking dismissal of a case under Code of Civil Procedure
sections 583.410 — 583.430 must serve and file a notice of motion at
least 45 days before the date set for hearing of the motion. The party
may, with the memorandum, serve and file a declaration stating facts in
support of the motion. The filing of the notice of motion must not
preclude the opposing party from further prosecution of the case to bring
it to trial.
(b) Written opposition
Within 15 days after service of the notice of motion, the opposing party
may serve and file a written opposition. The failure of the opposing
party to serve and file a written opposition may be construed by the court
as an admission that the motion is meritorious, and the court may grant
the motion without a hearing on the merits.
(c) Response to opposition
Within 15 days after service of the written opposition, if any, the
moving party may serve and file a response.
(d) Reply
Within five days after service of the response, if any, the opposing
party may serve and file a reply.
(e) Relevant matters
In ruling on the motion, the court must consider all matters relevant to
a proper determination of the motion, including:
(1) The court's file in the case and the declarations and supporting data
submitted by the parties and, where applicable, the availability of the
moving party and other essential parties for service of process;
(2) The diligence in seeking to effect service of process;
(3) The extent to which the parties engaged in any settlement
negotiations or discussions;
(4) The diligence of the parties in pursuing discovery or other pretrial
proceedings, including any extraordinary relief sought by either party;
(5) The nature and complexity of the case;
(6) The law applicable to the case, including the pendency of other
litigation under a common set of facts or determinative of the legal
or factual issues in the case;
(7) The nature of any extensions of time or other delay attributable to
either party;
(8) The condition of the court's calendar and the availability of an
earlier trial date if the matter was ready for trial;
(9) Whether the interests of justice are best served by dismissal
or trial of the case; and
(10) Any other fact or circumstance relevant to a fair determination
of the issue.
The court must be guided by the policies set forth in Code of Civil
Procedure section 583.130.
(f) Court action
The court may grant or deny the motion or, where the facts warrant, the
court may continue or defer its ruling on the matter pending performance
by either party of any conditions relating to trial or dismissal of the
case that may be required by the court to effectuate substantial
justice.
Please see the information at the following links:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=13001-14000&file=13100-13116
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=13001-14000&file=13200-13210
Please see the forms at the following links:
http://www.uslegalforms.com/us/US-PI-0095.htm
http://www.uslegalforms.com/ca/CA-CIV-110.htm
http://www.uslegalforms.com/us/US-00919.htm
Thank You,
Dana
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