Court Procedures for Probate
Historically, probate court was separate from other branches of civil courts. Over the past 30 years, most states have developed unified civil court systems that now include probate courts. Despite the unification of the civil court system, many procedures that governed probate proceedings when they were independent bodies are still used.
Most people will have at least some contact with probate proceedings at some time during their lives, whether it be when a will is probated, a guardianship is established, or (in some states) an adoption is being undertaken.
History
Probate (also known as surrogate) courts were courts that could act in equity, meaning that they made decisions said to be in the “best interest of justice.” In short, courts of equity tried to reach fair decisions.
Matters involving probate issues — wills, guardianships, conservatorships, adoptions — have a uniquely personal aspect to them that is not necessarily found in other types of court cases. Many times these cases require the weighing and balancing of the interests of different individuals in order to achieve a just or fair result.
Although courts of equity and courts of law generally have merged into a unified court system in most places in the country, courts dealing with probate issues still apply equitable principles in reaching decisions and issuing orders. Consequently, the procedures associated with probate court take into account the equitable powers of the court.
Function
Probate courts primarily focus on matters pertaining to estates, guardianships, conservatorships and related proceedings. Because these cases can significantly impact the lives and well-being of individuals, probate judges expert their procedures to be followed to the letter.
While there is some give and take in procedures established in other types of courts and proceedings, such is not normally the case in probate court and in probate proceedings.
For example, in a civil lawsuit a party can obtain an extension of a deadline established by the court. However, in probate procedure, deadlines established by the court often are not subject to alteration.
Notice
Among the procedures associated with probate court, those involving notice are among the most important. While notice to parties is important in any judicial proceeding, in probate cases notification requirements and procedures extend beyond the parties directly involved in a case.
In a case involving a last will and testament, for example, under probate procedures notice of the filing of a will with the court in order to open an estate is provided not only to those mentioned in the will who have a specific interest but also to such parties as creditors of the deceased.
Some probate procedures require legal notices associated with the will and the estate to be published in a newspaper in the community.
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Bond Requirement
Some probate procedures involve fiduciary responsibilities and bond requirements. Often an estate case involves the appointment by the court of an individual who is responsible for dealing with financial issues or the physical well being of an individual.
This relationship establishes what is known as a fiduciary duty, which means that a person legally is obliged to always act in the best interest of his charge, such as an estate or a conservatee.
Probate procedure normally requires that the individual designated by the court to serve as an executor of an estate or as a conservator of a person with a disability obtain a bond in order to provide an added layer of protection if an individual breaches her fiduciary duty.
Hire an Attorney
Because probate court procedures tend to be more complex than those of other legal proceedings, obtaining legal counsel is important. Even a simple mistake in regard to a procedure in probate court can have dire consequences.
By having representation from an attorney with experience with probate procedure, you are in the best position of ensuring that a case proceeds appropriately through the judicial system.
