Understanding Probate Court and Equity Law

Probate court is a special type of court which handles legal cases governed by equity law. Equity law is defined as "an order which directs an individual to act or refrain from acting." Probate cases are enforced by general guidelines known as 'maxims of equity' and differ from court regulated matters pertaining to doctrines and statutes. The first probate court in the United States was established in the state of Massachusetts in 1784. The primary role of probate court involves overseeing disbursement of decedents' estates. However, probate courts also oversee hundreds of legal matters including guardianship, adoption, marriage and name changes. Within the U.S. probate laws are adopted by each individual state. Depending on their jurisdiction probate courts can also be referenced as Court of Ordinary, Surrogate Court, Court of Equity and Orphans Court. Although probate laws vary by state, each requires decedents' estate to be managed by a designated probate executor. This person is appointed within the decedent's Last Will and Testament. When a person dies without a Will (intestate), a probate judge will appoint some to manage the estate. This person is usually a relative, probate attorney or estate planner. Executor duties are varied depending on the complexity of the estate. Typical duties include taking inventory of assets and obtaining property appraisals, paying outstanding debts, filing documents through the court, and distributing inheritance to heirs and beneficiaries. In order for probate to settle, the estate executor must present documentation to the judge verifying all maters have been appropriately handled. The judge reviews the case to ensure outstanding debts are paid and that distribution of assets adheres to the decedent's directives. Once the judge signs a settlement statement the administrator can proceed with distribution of inheritance assets. Probate usually lasts between four and nine months. Much depends on the courts caseload, validity of the last will, and how well heirs get along. If family discord occurs and heirs contest the Will, probate can drag on for years and potentially bankrupt the estate.

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In addition to overseeing probate estates, probate courts preside over all cases requiring enforcement of equity law. Typical cases include establishing guardianship for minor children, birth recordings and birth certificates, name changes, marriage licenses, and adoptions. Last, but not least, probate courts preside over civil actions related to probate. Common civil actions include contesting the last will and testament, determination of rightful heirs, and presumption of death. Civil actions are the only cases presented in probate court requiring a jury trial.

WA (360) 527-2630 CA (714) 998-6888

Copyright 2006 - 2009 http://www.SimonVolkov.com All rights reserved