If you have ever tried to start a California Trust or Will lawsuit by yourself in court (or any other legal matter for that matter), you may have been surprised about how hard it is just to get the case started. The most important issue people have trouble with is notice, legal notice that is. Under our system of justice, the Court can only act over a matter once its jurisdiction is properly invoked. And in order to properly invoke the court’s jurisdiction over a lawsuit, you have to give proper notice—often referred to as “service of process” (as in Constitutional right to due process of law). Due process is meant to ensure that every interested party to a lawsuit has a fair opportunity to respond. There are three main ways in which service of process is provided under our legal system—personal service, mail service and publication.
1. Personal Service
Personal service is when documents are personally handed to a party. In order to be valid, personal service must be done according to the rules of civil procedure. The first step is to have someone who is not a party to the action serve the opposing side. If that is not possible, then there are various ways in which “substituted” service can be achieved—that is service that is not personal, but meets the rules for personal service. (see substituted service starting at CCP section 415.20). Once personal service is obtained, then the court can exercise jurisdiction over the parties and the legal issues of the lawsuit. In a majority of probate matters (Trust and Will matters), personal service is not required.
2. Mail Service
Mail service is sending notice of a legal filing by mail to every interested party at their last known mailing address. (see mail service under Probate Code section 1220). A majority of Trust and Will cases only require mail service because the parties can choose to either be a part of the lawsuit or not. That’s because most Trust and Will matters involve the proper distribution of property. In other words, the property is the subject of the lawsuit. As opposed to most civil lawsuit, which determine the respective rights and liabilities against people or businesses and then imposes personal liability against them.
Publication is used to give notice to the world at large. In probate, publication is used to notify all interested parties and creditors of a decedent’s death so that creditor’s claims can be filed. Ironically, few people probably even read published notices of death, but that’s what the rules require. Publication is also used at times to effectuate substituted service when personal service is not possible.
How do you know what service type to use? That depends on the type of action you are bringing. The best way to find out is to check either the probate code under which you are filing your petition, or the code of civil procedure notice section (if the probate code does not provide a procedure for notice). Once you know the type of service required, just follow the rules and then file proof of service with the court. The court then has the power to take action on your matter.