by the Honorable Gerald G. Johnston
I called my first (and almost last) Probate Calendar January 10, 2002. One might properly wonder why I would recall this experience after the passage of so much time? Perhaps, the brain is structured to vividly embed memories of painful trauma in an effort to promote future survival. Allow me to offer a bit of explanation.
I was a relatively new judge with minimal experience in areas other than criminal procedure and some fairly esoteric portions of environmental protection law. My first assignment as a bench officer involved a lengthy daily commute to the most remote courthouse in the county from my residence. My many hours of freeway meditations had motivated me to find any available new assignment, no matter what the subject matter, as long as I could conduct business in a courthouse closer to home. However, a lack of seniority as a newer judge allowed few options to improve my circumstances. Thus, I was intrigued to learn in late 2001 there was an unfilled opening for a judge in the Probate and Mental Health Division of our court. I immediately contacted the Presiding Judge to inquire about the spot. He informed me no other judge had volunteered to move to Probate and asked what I knew about this practice area. I had to confess I would be a tabula rasa for all things probate—but was happy to learn. Apparently, the absence of any other willing candidates for the position weighed heavily in my favor despite my significant lack of qualifications. The Presiding Judge enthusiastically welcomed me to probate. Perhaps it was just my imagination, but I thought I sensed a tone of relief in his voice.
My arrival to the probate division was challenging and exhilarating. Our staff of clerks and attorneys were knowledgeable and extraordinarily helpful. I was immersed in a new paradigm of language and legal concepts. I learned that probate law actually evolved separately from civil law, and had developed unique approaches and procedures that had no relation to other areas of jurisprudence. Sadly, in the early 2000s, there were few resources available to allow a judge new to an assignment to attend an orientation prior to starting the work. Thus, after a modest briefing by seasoned support staff, I was expected to get on with the work and call my first decedent’s estates calendar. Generally, such an ad hoc process of a quick orientation works well enough. I, however, demonstrated an exception to that rule.
I entered my large courtroom and found it populated with dozens of attorneys with clients, and self-represented litigants. The calendar included about thirty pending petitions in various states of readiness for trial setting or approval. One by one, I called the matters. Each time someone spoke, I was introduced to yet another term new to me: e.g., Heggstad petition, pretermitted spouse, pass and confirm community and separate property, disqualified heir under Probate Section 250.
On and on it went until finally the last case was called. The clock told me only three hours had passed, but subjectively, it felt I could have read War and Peace and then watched the movie in the time I spent on the bench that afternoon. Exhausted and dismayed, I replayed the experience in my head. My inability to understand or speak “probatese” was clearly discomforting to the audience. Some of the attorneys had tried to help me by suggesting the findings I should make. Others just stared at me with wonder as they tried to divine whether the halting and confused words I had just uttered related to their petition, and calculated how to respond without furthering my embarrassment. That evening, I felt as if the long freeway drive I had so wanted to leave behind was beckoning me back with the promise of ease and familiarity.
However, despite the chaos of my first effort to manage probate matters, I was intrigued. I had just entered a world where judges have a seat at the table. In probate, a judge may act as a “superfidiciary.” Unlike the impartial judicial role mandated in most other areas of law, a probate judge may make an independent determination as to whether a vulnerable person is being fairly treated in the disposition of any pending petition. Probate practice includes much more than just wills and trusts. A large portion of the filings in probate involve guardianship of minors, conservatorship for developmentally disabled adults and others who may have lost the ability to make decisions regarding their care and finances, and the prevention of physical, financial, and emotional abuse of elders.
The idea that a judge could act as a finder of fact and law as well as a protector of individuals needing assistance was incredibly attractive, and served to overcome my discomfort in attempting to gain competency in an unfamiliar field of study. I threw myself into the work, determined to be ready to intelligently respond the next time a probate lawyer asked me to “issue letters of administration” (which I had just learned had no connection to the US Postal Service).
My educational path in probate was a lengthy and joyful journey. Although I spent time serving our court in other case type assignments, probate became my passion and focus. I had the privilege of working in our probate division three times during my twenty-four-year judicial tenure, with the last posting as Supervising Judge of Probate, Mental Health and Elder Abuse lasting ten years until my retirement.
Why would a judge want to spend the majority of his career in probate when there are other seemingly more attractive assignments? This question was sometimes posed to me by my colleagues who even wondered if I might have irritated a Presiding Judge and was serving lengthy penance. The answer is simple for me (as well as the dozens of outstanding attorneys I encountered who specialize in this area of practice). Probate work creates an opportunity to make a difference in the lives of people and families needing help. There is no arguing that some aspects of probate work can be dry, recondite, and tedious (e.g., reviewing and ruling on dozens of objections to a 200-page trust account). However, this is counterbalanced by the everchanging pageant of the human condition that presents itself daily at our justice complex.
During my tenure, I encountered fascinating cases involving well-known celebrities, fabulously wealthy families, internecine inter-familial conflict, and even murder. Some matters involved heart-rending interventions by relatives or responsible authorities to prevent abuse and neglect of at-risk minors or compromised adults. Family conflict over money, power, and control often undergirded the probate cases—the saddest of those invariably included a failing parent who was used as leverage in a struggle between members of a younger generation. For me, petitions for authority to withdraw life-sustaining medical treatment were, by far, the most difficult. The court becomes involved in such decisions when an uncommunicative person failed to provide prior instructions as to her or his wishes in the event of a major medical crisis. Family members will sometimes disagree about the content of the most recently expressed desires by the loved one. In addition, treatment providers may hesitate to take action (e.g., disconnecting life support for a patient without brain activity) absent an order from the court. In such terrible circumstances, a judge will be asked to make a ruling which may lead to the end of life.
In 1900, people age 65 and over made up about 5% of the United States’ population. That figure rose to around 17% (51 million) in 2020 (see Zoe Caplan, United States Census Bureau report (May 25, 2023), census.gov) and is expected to top 22% by 2050. This accelerating demographic shift has caused a dramatic increase in probate-related filings over the past few decades. During my first tour as a probate judge in the early 2000s, the court was staffed with two bench officers. By the time of my retirement in 2023, our Probate division had been expanded to six bench officers. Despite the three-fold increase in judicial resources, our ability to process filings and trials lags behind what could be accommodated in 2002. The simple explanation for this development is the number of petitions filed in probate has increased inexorably and in tandem with the expanding population of older adults. The number of compromised older adults suffering from age-related cognitive and physical issues has become a challenge for the resources of the courts, social services agencies, and our health care system. As our population grays, it is reasonable to assume this trend will continue.
The increased demand in probate-related case types has, unsurprisingly, impacted the ability of courts throughout California to efficiently resolve and adjudicate petitions. Although the courts are dedicated to the mission of providing access to everyone seeking relief in probate court, there has been a rising trend where litigants seek the services of a mediator, arbitrator, or judicial reference to help resolve some or all issues presented to the court. These private services offer accelerated mediation or arbitration timelines from what is available in probate court, enhancing the potential for earlier settlement or determination of issues. Attorneys and clients must weigh factors such as the costs of mediation or arbitration, the value of early resolution, and the potential avoidance of discovery, motion, and trial costs in determining which lane to select.
Many of the best lawyers I have encountered in my various judicial assignments are specialists in probate work. These practitioners are strong advocates who, even in battle, never lose sight of what constitutes a fair and proper outcome. Further, they are willing to accept an appointment from the court to represent people in need who have no resources—even when it means there will be little or no fee earned. Working with these wonderful attorneys, whose conduct demonstrates the best of what practicing law should be, was one of my great joys in discovering probate law.
Transferring to probate court those many years ago to avoid a long drive was my Forrest Gump “box of chocolates” moment. I did not know what I was going to get, but ended up receiving a gift far better than anything I might have expected—one I will savor in the years ahead.
The Honorable Gerald G. Johnston offers mediation and arbitration services for probate-related matters through JAMS. He can be reached at gjohnston@jamsadr.com.