Probate court is a type of court that handles matters involving the probate of wills, estate administration, guardianships, and conservatorships. Probate is defined as the court-supervised procedure of organizing a deceased person’s assets, paying taxes and debts, and distributing the remainder to the beneficiaries.
Probate courts mainly oversee the distribution of a deceased person’s distribution of their assets according to their will as well as estate administration.
Probate courts differ from traditional courts in that they focus on very specific types of law. Not all jurisdictions maintain probate courts. In some jurisdictions, probate courts can either be a separate branch or may be affiliated with a larger court entity.
Probate courts and probate judges handle a wide variety of procedural, administration, and legal matters pertaining to wills and estates. For example, probate courts will typically perform functions such as:
- Overseeing the distribution of the property and assets of a person who has become deceased;
- Determining the authenticity of a will document;
- Enforcing provisions contained in a valid will;
- Preventing misconduct by executors and estate administrators;
- Determine which descendants will receive the deceased’s property under the laws of the jurisdiction;
- Evaluating any debts, outstanding claims or lawsuits relating to the person’s estate.
- Oversee and authorize official name changes;
- Appointing conservators to take care of a minor or a person incapacitated by a disabiltiy or illness; and
- Appointing a guardian ad litem with the responsibility to make certain decisions about the care of a child or a person incapable of representing themselves.
Furthermore, the probate court may evaluate claims and lawsuits involving will disputes and will contests. Probate courts may also evaluate issues related to intestacy. Intestacy occurs when a person dies without a valid will. When this happens, the court will determine how the person’s property is to be equally distributed to relatives.
If a person dies without a will or without having any heirs, the government in the person’s state of residence will typically claim the assets of the individual through intestate succession. Each state has different laws pertaining to intestate distribution. For example, if a person dies without a will in Maryland, a person’s assets may end up being distributed to the Board of Education in the City where the person lived.
A probate court judge has the responsibility of overseeing all aspects of the probate court system. In some jurisdictions, such as Connecticut and South Carolina, judges are elected in partisan elections. In other states, a probate court judge may be appointed by the governor.
A probate court judge’s duties can vary depending on whether the deceased person had a valid will or if the individual died intestate, meaning he or she did not have a will at the time of their death.
You can file a claim with a probate court if you have any matters regarding an estate that need to be resolved. For example, if you determine that an estate is being handled improperly and that a person’s assets are not being distributed in accordance with a will or state law, you may file a petition with the probate court. As a solution, the court may order the executor of a will to give an accounting of their activities, or they may appoint a replacement executor.
When filing an action with the probate court, you typically need to provide the following information or evidence:
- Factual information involving the dispute or contest;
- Copies of the person’s valid will/estate documents;
- A list of which parties that may be involved;
- A list of the beneficiaries affected;
- A list of the property involved in the dispute;
- Any outstanding claims or debts on the person’s estate; and
- A request for what you wish the court to accomplish.
Because probate matters can often be fairly complicated, it’s necessary and recommended to work closely with a probate attorney for legal advice and guidance.
Depending on state law and the complexity of the estate, probate court matters could take between one to three years. In other states, it may take a few months for a matter to be resolved in probate court. In some states, probate may be completed within one year after a person’s death. In other states, complex probate court matters could take up to two years or longer.
Probate court may be avoided if a person creates a will before their death. A will is a legal document detailing where and to whom the person wants property to be distributed upon death.
Probate court can be avoided if a person adds a payable on death (POD) designation to their bank accounts. After a person passes away, the beneficiary may claim the money directly from the bank without filing an action in probate court.
Probate courts may sometimes have their own unique set of local rules and procedural guidelines. For example, the probate court may maintain different deadlines and requirements that are distinct from other local probate courts. Therefore, because an experienced probate lawyer understands the challenging rules and procedures of probate court, it may be beneficial and advantageous that you contact an experienced probate lawyer.
Your lawyer near you can provide you with expert advice on numerous probate matters. Additionally, in the event that a formal lawsuit becomes necessary, your attorney can represent you in court and protect your interests.