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Rule 6-506. Procedure for contested matters filed in the probate court.

Intent:

To establish procedures for contestedmatters filed in the probate court.

Applicability:

This rule applies to matters filedunder Title 75, Utah Uniform Probate Code when an objection is made orally orin writing upon the record (a ?probate dispute?).

Statementof the Rule:

(1)       General Provisions. When there is a probate dispute:

(1)(A)        Rule 4-510.05 of the Utah Code of JudicialAdministration and Rule 101 of the Utah Rules of Court-AnnexedAlternative Dispute Resolution apply.

(1)(B)        Uponthe filing of an objection with the court in accordance with Rule 26.4(c)(2) ofthe Utah Rules of Civil Procedure, all probate disputes will be automaticallyreferred by the court to the Alternative Dispute Resolution (ADR) Program underRule 4-510.05 of the Utah Code of JudicialAdministration, unless the court waives mediation.?

(1)(C)        Afteran objection has been filed, and unless the court has waived mediation, thecourt will schedule the matter for a pre-mediation conference for purposes ofthe following:

(1)(C)(i)         determiningwhether there is good cause for the matter to not be referred to mediation;

(1)(C)(ii)        ensuringthat a guardianship respondent has been provided counsel or that the processprovided in Utah Code section 75-5-303 has been followed;

(1)(C)(iii)       determiningall interested persons who should receive notice of mediation;

(1)(C)(iv)       determiningwhether any interested person should be excused from mediation;

(1)(C)(v)        selectingthe mediator or determining the process and time frame for selecting themediator, as provided in Code of Judicial Administration Rule 4-510.05;

(1)(C)(vi)       determiningthe issues for mediation;

(1)(C)(vii)      settingdeadlines;

(1)(C)(viii)     modifyinginitial disclosures if necessary and addressing discovery;

(1)(C)(ix)       determininghow mediation costs will be paid; and

(1)(C)(x)        entering a mediation order.

(1)(D)        Thecourt will send notification of the pre-mediation conference to petitioner,respondent, and all interested persons identified in the petition at thehearing and any objection as of the date of the notification. The notificationwill include a statement that

(1)(D)(i)         theinterested persons have a right to be present and participate in the mediation,the interested persons have a right to consult with or be represented by theirown counsel, and the interests of the interested persons cannot be negotiatedunless the interested persons specifically waive that right in writing; and

(1)(D)(ii)        unless excused by the court, an interested person who fails to participateafter receiving notification of the mediation may be deemed to have waivedtheir right to object to the resolution of the issues being mediated.

(2)       Procedure

(2)(A)        Objections. Aparty who files a timely objection pursuant to Rule of Civil Procedure 26.4 isrequired to participate in the court-ordered mediation unless the court uponmotion excuses the party?s participation.

(2)(B)        Involvement of Interested Persons.

(2)(B)(i)         Anynotice required under this rule must be served in accordance with Rule 5 of the Utah Rules of CivilProcedure.

(2)(B)(ii)        Oncemediation is scheduled, the petitioner must serve notice of the following toall interested persons:

(2)(B)(ii)(a)           Thetime, date, and location of the scheduled mediation;

(2)(B)(ii)(b)           Theissues to be mediated as provided in the pre-mediation scheduling conferenceorder;

(2)(B)(ii)(c)           Astatement that the interested persons have a right to be present andparticipate in the mediation, that the interested persons have a right toconsult with or be represented by their own counsel, and that the interests ofthe interested persons cannot be negotiated unless the interested personsspecifically waive that right in writing; and

(2)(B)(ii)(d)           astatement that, unless excused by the court, an interested person who fails toparticipate after being served notice of the mediation may be deemed to havewaived their right to object to the resolution of the issues being mediated.

(2)(B)(iii)       Additionalissues may be resolved at mediation as agreed upon by the mediating parties andthe mediator.

(2)(B)(iv)       Oncethe mediation has taken place, the petitioner must notify all interestedpersons in writing of the mediation?s outcome, including any proposedsettlement of additional issues.

(2)(B)(iv)(a)          Anexcused person has the right to object to the settlement of any additionalissue under (2)(B)(iii) within 7 days of receivingwritten notice of the settlement.

(2)(B)(iv)(b)         Anyobjection to the settlement of additional issues must be reduced to a writing,set forth the grounds for the objection and any supporting authority, and befiled with the court and mailed to the parties named in the petition and anyinterested persons as provided in Utah Code ? 75-1-201(24).

(2)(B)(iv)(c)          Uponthe filing of an objection to the settlement of additional issues, the casewill proceed pursuant to paragraphs (2)(C) through(2)(I).

(2)(C)        Deadline for mediation completion.

(2)(C)(i)         Mediationmust be completed within 60 days from the date of referral.

(2)(C)(ii)        Ifthe parties agree to a different date, the parties must file notice of the newdate with the court.

(2)(D)        Mediation Fees.

(2)(D)(i)         Ifthe estate or trust has liquid assets, and the personal representative,trustee, guardian, or conservator, as applicable, is a mediating party, theestate or trust must pay the mediator?s fees.

(2)(D)(ii)        Otherwise,the disputing parties will share the cost of the mediation but may laterrequest reimbursement from the estate or trust if the estate or trust hasliquid assets.

(2)(D)(iii)       Aparty may petition the court for a waiver of all or part of the mediation feesif the party cannot afford mediator fees or for other good cause.

(2)(D)(iv)      Ifthe court grants a waiver of mediation fees, the party must contact the ADRDirector who will appoint a pro bono mediator.

(2)(E)        Initial disclosures. Within 14 days after a written objection has been filed, the partiesmust comply with the initial disclosure requirements of Rule 26.4 of the Rulesof Civil Procedure.

(2)(F)        Discovery once a probate dispute arises. Except as provided in Rule 26.4 ofthe Rules of Civil Procedure or as otherwise ordered by the court, once aprobate dispute arises, discovery will proceed pursuant to the Rules of CivilProcedure, including the other provisions of Rule 26.

(2)(G)        Completion of mediation. Upon completion of mediation, the parties will notify theCourt of the mediation?s resolution pursuant to Rule 101 of the Utah Rules of Court-AnnexedAlternative Dispute Resolution.

(2)(H)        Written settlement agreement. If mediation results in a written settlement agreement, upona motion from any party, the court may enter orders consistent with its terms. Thefiling of an objection under paragraph (2)(B)(iv)(a)does not preclude the court from entering orders consistent with the resolvedissues.?

(2)(I)          Remaining issues. If issues remain to be resolved after the conclusion of mediation, theparties must request a pretrial conference with the assigned judge to establishthe deadlines for any supplemental initial disclosures, fact discovery, expertdisclosures, expert discovery, and readiness for trial.

 

EffectiveJanuary 1, 2020.