QUESTION
Is the final hearing considered an EVIDENTIARY HEARING?
Asked on Jul 15th, 2013 on Estate Planning - Delaware
More details to this question:
I am a pre-se beneficiary in an Estate matter and have petitioned the court for removal of the executor for his failures as a fiduciary. Is the final hearing considered an EVIDENTIARY HEARING? Additionally, if the judge has been made aware that the executor is in contempt of a court order in the ancillary estate and has lied on the bond application, is the Judge required to remove the executor?
10 ANSWERS
Not usually. It appears that the court is asking the parties to present evidence i.e. at a hearing before the judge, to show cause why the executor should not or should be removed.
Answered on Jul 19th, 2013 at 4:27 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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The judge is not *required* to do anything. The judge can do whatever the judge will do. If the personal representative is represented by legal counsel, you do yourself and your cause a disservice by failing to hire an attorney. An evidentiary is not usually the "final hearing." Normally, that would be the trial. That happens after the evidentiary hearing. It is likely the judge would also order mediation or facilitation, before trial.
Answered on Jul 17th, 2013 at 10:19 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Get yourself the assistance of a probate litigation attorney assist you in the presentation of evidence in the hearing as to why your petition should be granted. Yes the hearing is an evidentiary hearing. The matter sounds serious, and the judge will need wall of the assistance you can potentially provide in the hearing, which means witness', documentation, and affidavits.
Answered on Jul 17th, 2013 at 3:13 PM
3 Awards
No to both issues.
Answered on Jul 17th, 2013 at 3:13 PM
Sanford M. Martin
Because evidence is necessary to prove allegations, yes, the final hearing appears to be an evidentiary hearing. As a pro se representative, you must still prove any contention, objection, or allegation with documents, witnesses, or other evidence. Merely because the judge is aware of these contentions does not prove the contentions, especially if the other party opposes your contentions. If the other party admits to your contentions, your need for evidence is less or nonexistent.
Answered on Jul 17th, 2013 at 3:13 PM
2 Awards
The final hearing in a probate is a Petition for Final Distribution and generally no evidence is taken. If there is an objection the court may set it over for an evidentiary hearing. The judge is rarely required to remove an executor and getting one removed, especially on your own without an attorney, may prove quite difficult.
Answered on Jul 17th, 2013 at 3:12 PM
Bankruptcy Attorney serving Florissant, MO
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Law Offices of Thomas Corcoran Phipps
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Every hearing is an evidentiary hearing. You will need to have your evidence ready and follow the rules of evidence. It is up to the judge whether or not to remove a personal representative
Answered on Jul 17th, 2013 at 12:04 PM
Elder Law Attorney serving Hollister, CA
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Charles R. Perry
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Your question is not clear to me. The Court will certainly take evidence before making its ruling, but it need not hold an "evidentiary hearing," meaning it need not hold a hearing involving live testimony. It may be that the Court decides the matter based on declarations submitted beforehand. I hope that answers your question.
Answered on Jul 17th, 2013 at 11:45 AM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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Evidence of what you are alleging should be presented to the Court and it is the Court's decision.
Answered on Jul 17th, 2013 at 11:22 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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The evidentiary hearing is to provide to the Court the evidence upon which it will make its decision. You should be represented or at least see counsel.
Answered on Jul 17th, 2013 at 11:22 AM