Probate Court

Probate courts preside over issues related to deceased persons, their wills and the administration of their estates. Some states have specifically named probate courts, while in others these functions are carried out by district, circuit, chancery, orphans, surrogate or superior courts.

Regardless of name, probate courts are all local in nature. Probate is not under federal jurisdiction. The court that has jurisdiction over the probating an estate is usually the one in the locale where the deceased person lived just prior to dying.

When it is dealing with matters of probate, the court's role is to:

Appoint an executor or administrator of a decedent's estate
Adjudicate the validity of a will (if any) and enforce its provisions
Prevent any malfeasance on the part of a will's executor or administrator
Oversee the proper distribution of the assets and property of a decedent
Make sure that a decedent's debts, taxes and funeral expenses are paid
Decide who will ultimately receive a decedent's property in cases where a will is contested
Provide for the equitable distribution of an estate's assets if a person dies intestate, i.e. without a valid will

Probate courts can also deal with other issues, including name changes, marriages, adoption, guardianship, parental rights, court-ordered commitment of persons with psychiatric disabilities, and other family matters.

Overall, probate courts are generally more informal than other kinds of courts, and the probate courtroom may merely be an office or conference room.  Judges often don't preside from a bench or wear judicial robes. The majority of uncontested matters are heard more quickly in a probate court and people typically have more direct access to its legal proceedings.

Typical Probate Hearings

A probate court hearing is an opportunity for any of the parties of interest, like a decedent's family members or persons with claims against an estate, to make their views known to the court judge and/or its officers. Generally, a probate court will notify all parties of a hearing after an application has been submitted to the court to "open" an estate.

An estate must be opened if a decedent owned property at the time of his or her death that was not owned "in survivorship," i.e. with the right of a surviving joint owner of an asset to claim it in its entirety.

Other court hearings may be necessary during the probate process to:

Appoint an executor or administrator of an estate
To hear a request for an allowance for support of a surviving spouse or children before an estate has been settled
For the settlement of any disputed claims by inheritors or creditors
For the sale of real property in order to pay a decedent's debts

In most cases, an attorney can accompany an interested party. And in some instances, the attorney can even represent a client without the client needing to appear in court.

A hearing can be waived if no interested party requests one, and in some probates where there are no disputes among inheritors and no problems with creditors, the entire process can be accomplished without any court hearings at all.

Court-Required Information and Documents

Every probate court has its own detailed rules about the documents it requires, what they must contain and when they must be submitted. In almost every instance, the probate process begins with the filing of an application with the court by an interested party, usually a close relative of the decedent, to become the executor – called the personal representative in some states – of the estate.

Along with the application, a certified copy of the death certificate and the original will (if there is one) must also be filed with the court. Once the court officially appoints the executor, that person will now be responsible for all future submissions necessary to complete the probate process, including:

Names and addresses of all the decedent's beneficiaries (if named in a will) or heirs and relatives (if not named in a will)
Names and addresses of anyone mentioned in the will
A list of all assets and property left by the decedent, including bank accounts, stocks and bonds, automobile(s), valuable tangible property, real estate, business interests, etc.
A list of any insurance not payable to a named beneficiary
Any Social Security or Veterans' Benefits to which the deceased was entitled
A list of any outstanding debts, loans, or obligations of the deceased
A list of funeral expenses
Proof that notices to heirs, beneficiaries and creditors have been mailed
Proof that notice of the probate has been published in a local newspaper
Any other documents required by the court

If there is no one named in the will as the estate's executor, or if no one is willing or able to serve as such, the court will appoint one. The executor can be an individual, a bank or a trust company. If the decedent died intestate, an administrator will be appointed who will be required to submit the required documentation to the probate court.