Epilawg editors note: This post is mainly intended for Minnesota probate attorneys, however, we hope that all readers can learn from it.
If you believe that the only recourse available with respect to an unfavorable decision made by a probate referee is to file a post-trial motion or an appeal, you are, in fact, mistaken. Chances are good, however, that you are not the only one who has made this mistake. A little known aspect of probate court practice in Hennepin and Ramsey counties is that a probate referee’s recommended order is immediately subject to review, at the request of any party, by the presiding probate judge. This Article will explore and, hopefully, illuminate this oft-ignored mechanism for obtaining review in probate court proceedings.
Typical Probate Process
In Hennepin and Ramsey counties, probate matters are, in many instances, assigned to and heard by a referee. While probate referees are experienced and well respected trust and estate practitioners, and, within the confines of probate court, they appear to function no differently than a judge, they can only recommend orders, which are then subject to confirmation by the presiding probate judge. For this reason, a party is entitled to seek the probate judge’s review of a referee’s recommended order before taking an appeal. To be clear, this process does not take the place of an appeal, but is instead a separate option available to a party unhappy with a probate referee’s recommended order.
Initiating a Review
In order to take advantage of this option, there are several things to be aware of. First, the deadline for seeking the probate judge’s review of a recommended order is relatively short: “Review of any recommended order or finding of a referee by a judge may be by notice served and filed within ten days of effective notice of the recommended order or finding.” Minn. Stat. § 484.70, subd. 7(d). This is a hard deadline. The probate judge lacks jurisdiction to consider an untimely request for review. Furthermore, the notice of motion and motion for review must specify the grounds for review and the specific provisions of the recommended order that are disputed. Upon receipt of timely motion papers, the probate court is required to schedule a hearing.
But when does the clock start running on this short 10-day review period? That depends. A party is deemed to have “effective notice” of the recommended order three working days after either a party, or the court clerk, has served the order by mail. What constitutes “effective notice” in the context of service by messenger, facsimile, or electronic means is less clear, however. Presumably, notice is deemed “effective” as of the date such service is accomplished in the manner set forth in Rule 5.02(c) of the Minnesota Rules of Civil Procedure. Regardless, in an abundance of caution, one would be well advised to apply the earliest possible date that one received notice of the recommended order in calculating the statutory 10-day period.
Second, even if, as is almost always the case, the probate judge has already countersigned the recommended order before the expiration of the 10-day period, a party may still request review of the approved order by the judge. Nonetheless, the order is deemed effective from the date of its countersigning, and it remains in effect during the pendency of the review process unless the probate judge expressly stays, modifies, or vacates it.
That said, absent an obvious or egregious error by the probate referee, one’s chances of prevailing on a motion for review before the probate judge are likely minimal. Because referees sit as judicially appointed fact finders in the matters assigned to them, their evidentiary rulings and factual determinations are entitled to deference upon review. Furthermore, as a practical matter, one can reasonably question the likelihood of a probate judge reversing a referee’s recommended order that he or she has already, more often than not, reviewed and approved.
Nonetheless, this review process may have important implications for future appellate proceedings, so the incentive for pursuing this type of review goes beyond the mere likelihood of obtaining the recommended order’s immediate reversal. Seeking statutory review by the probate judge is in the nature of a motion for amended findings or a new trial, and failure to do so results in a limited scope of review on subsequent appeal. It may, therefore, depending on the potential grounds of appeal, be important to seek the probate judge’s review of a referee’s recommended order. Unlike a conventional post-trial motion, however, the process of seeking the probate judge’s review of a recommended order does not postpone the time for taking an appeal.
So, the next time you receive a recommended order from a probate referee that you believe was wrongly decided, keep in mind that you always have the option of seeking immediate relief from the probate judge. It may not always be the most appropriate or advisable approach, but, at the very least, it constitutes an additional tool in the knowledgeable probate litigator’s toolbox.