Using Subpoenas in Probate Court: Estate Disputes

Using Subpoenas in Probate Court: Estate Disputes

Dealing with the estate of a deceased loved one can be really tough. There’s often a lot of legal stuff to figure out, and sometimes family members don’t see eye-to-eye on things. If fights break out, you may need to go to probate court and use subpoenas to get documents and testimony. This article will walk you through how subpoenas work in probate court estate disputes.

What is Probate Court?

When someone dies, their estate (all their assets like money, property, investments, etc.) has to go through a legal process called probate. This involves identifying assets, paying debts, and distributing what’s left to the heirs. Probate court is the court that oversees this. The judge resolves any disputes that come up over the estate.

What is a Subpoena?

A subpoena is a legal document that forces someone to produce documents, records, or testimony related to a court case. There are two main types of subpoenas:

• Subpoena Duces Tecum – requires someone to turn over documents
• Subpoena Ad Testificandum – requires someone to testify at a hearing or deposition

If the person doesn’t comply, they can be held in contempt of court and face penalties like fines or even jail time.

Why Use Subpoenas in Probate Cases?

There are a few common reasons subpoenas may be needed in probate disputes:

• The executor won’t share copies of the will or other estate documents
• Financial institutions won’t release the deceased’s bank records
• You think assets are being hidden or someone is lying about assets
• You need documentation to establish rightful heirs
• Witnesses won’t voluntarily testify about promises the deceased made

Subpoenas can force people and institutions to turn over documents and provide testimony in these situations.

How to Get a Subpoena in Probate Court

The process to get a subpoena in probate court involves a few steps:

1. Draft the subpoena – List exactly what documents, records, or testimony you need and from whom.
2. File a motion – Explain to the judge why you need the subpoena and how the information is relevant to the case.
3. Court reviews motion – The judge decides whether to approve or deny the subpoena.
4. Serve the subpoena – If approved, you arrange to have the subpoena formally delivered to the person.
5. Wait for response – The person has a certain amount of time to comply with the subpoena.
6. File motion to compel – If they don’t comply, you can file a motion asking the judge to order them to comply.

It’s a good idea to have a probate litigation attorney help draft the subpoena and motions. They know the proper format and language to use.

Subpoenaing the Executor for Documents

A common subpoena in probate cases is to force the executor to turn over documents, especially a copy of the will. As an executor, they have a duty to provide beneficiaries with a copy of the will. If they refuse, a subpoena can compel them to turn it over.

The motion should explain how you have a right to see the will as a beneficiary and the executor is improperly withholding it. The court will likely approve the subpoena unless the executor can show some valid reason for keeping the will confidential.

Subpoenaing Banks and Financial Institutions

You may need to subpoena banks, brokerages, or other places the deceased kept accounts to get documentation. This can help track down assets and identify any suspicious transactions. The motion should explain why you need these records and how they relate to the probate case.

Financial institutions often hesitate to release documents without a subpoena because of privacy laws. The subpoena protects them from liability in disclosing the private financial information.

Subpoenaing Witnesses to Testify

Another reason for subpoenas in probate cases is to compel witnesses to testify at a hearing or deposition. There are a few common scenarios where witness testimony is needed:

• Testimony about promises the deceased made about inheritance
• Testimony about assets that may have been concealed
• Testimony about suspicious activity by the executor
• Testimony about the deceased’s mental state if competency is disputed

The motion should convince the judge the testimony is needed to resolve a specific dispute in the case. Witnesses can face penalties if they don’t comply with a subpoena to testify.

Tips for Drafting Subpoenas

Here are some tips for drafting effective subpoenas in probate cases:

• Clearly identify the person or institution you want records or testimony from.
• Specify the exact records or type of testimony needed.
• Give a reasonable time frame for compliance – 30 days is common.
• List an address where the documents should be delivered.
• State the penalties for failing to comply.
• Don’t make overly broad or vague requests – keep it focused.

Serving the Subpoena

To be valid, a subpoena usually must be formally served on the person by someone 18 or older who is not involved in the case. They have to personally deliver the subpoena and sign an affidavit saying they served it. Each state has rules on who can serve a subpoena and how.

You can also typically pay a sheriff’s department or private process server to handle serving subpoenas for you.

What Happens if Someone Ignores a Subpoena?

If the person ignores or doesn’t fully comply with the subpoena, there are a few options:

• File a motion to compel – Ask the judge to order them to comply and set a deadline.
• File for contempt of court – The judge can impose fines or jail time to coerce compliance.
• Hire an attorney – A lawyer can put more pressure on the person to respond.
• Settle the dispute – Offer to make concessions in the case in return for the information.

Judges don’t take kindly to people disregarding subpoenas. But it’s best to get a probate litigation lawyer involved rather than seeking contempt immediately.

Subpoena Defenses People Can Raise

People who are served with subpoenas have some defenses they can raise to try to avoid complying:

• Attorney-client privilege – Protects confidential attorney communications.
• Doctor-patient privilege – Protects medical information.
• The documents or testimony are not relevant to the case.
• The subpoena requests confidential information.
• The subpoena imposes an undue burden.
• The request is overbroad and needs to be narrowed.

These defenses have varying degrees of success. A probate litigation lawyer can argue against them and negotiate the scope of the subpoena.

Subpoenaing Records Before Probate Starts

In some cases, you may need records to determine if opening a probate is even necessary, like if you suspect someone is hiding assets. Whether you can subpoena records pre-probate depends on each state’s laws. Some allow it, some don’t. A probate attorney can help petition the court for pre-probate subpoenas where allowed.

Should You Hire a Lawyer to Handle Subpoenas?

While you can draft and file subpoenas yourself in probate court, it’s highly advisable to have a probate litigation attorney handle it. Here are some key reasons why:

• They know the procedures and technical requirements.
• They can argue the case for why the subpoena is needed.
• They can negotiate with the person to limit the scope.
• They can force compliance through contempt motions.
• They can object if the other party subpoenas you.

A lawyer makes the subpoena process go much more smoothly. The legal fees are well worth it in most cases.

Key Takeaways

Here are some key takeaways about using subpoenas in probate court estate disputes:

• Subpoenas force people and institutions to provide documents and testimony.
• They are often needed when the executor or others won’t cooperate.
• The court must approve the subpoena after you file a motion.
• Not complying with a subpoena can lead to contempt sanctions.
• Work with a probate litigation lawyer to issue effective subpoenas.

Subpoenas are an important tool for probate disputes. They can compel disclosure when people resist cooperating. With a lawyer’s help, you can successfully use subpoenas to access the documents and testimony you need.

References

Pennsylvania Consolidated Statutes, Title 20 – Decedents, Estates and Fiduciaries[1]

Pennsylvania General Assembly, Title 20[2]

Can a Witness be Compelled to Appear in Probate Court? – Clear Counsel Law Group[3]

Subpoenas for Testamentary Documents: Getting a Copy of the Will when the Executor Refuses – League and Williams[4]

Obtaining Records: Subpoenas and Legal Action to Produce Documents | Huber Fox, P.C.[5]

Accessing the Decedent’s Bank Records Before a Probate is Filed[6]