Probate is an important legal process that determines how the estate of a deceased individual should be settled and distributed. The probate judge is the adjudicator that oversees this court administered process. If you’re preparing your own estate or someone else’s estate for the probate process, then it will be helpful to understand what the judge does and what you can expect from them. Trust & Will explains the probate judge’s role in this helpful guide.
What is a Probate Judge?
A probate judge is a legal professional who oversees the estate administration of deceased individuals. This includes oversight over the probate process, estate settlement, and individuals appointed as representatives of estates. They make decisions when any legal matters must be resolved. A probate judge also has the power to appoint a legal guardian for minors or dependent adults.
The probate system lies within each state and county. While most states and counties have probate courts, others have surrogate’s courts. These systems operate similarly, covering the same legal matters. Judges in either probate or surrogate courts have the same responsibilities and oversee the same matters.
What Does a Probate Judge Do?
A probate judge’s main duty is to oversee and adjudicate the probate process. This process is dealt with on a case-by-case basis, which means that a judge’s duties will vary with each case. Further, probate laws lie with states and local governments, meaning that the process is also impacted by location.
Here is a summary of the possible duties of a probate judge:
Grant administrative powers to the Executor of the Will
Appoint an Administrator to the deceased’s estate (No Will)
Provide oversight on Executor's duties and actions
Ensure that estate inventory is accounted
Enforce that debts must be paid
Use intestacy laws to determine heirs and distribute the estate (No Will)
Examine any evidence submitted on suspicion of elder abuse or estate fraud
Accept any contests or claims against the estate
Conduct hearings and testimonies
Grant authority for the estate to be distributed
Make any final rulings as applicable
Close the estate
The Role of a Probate Judge
The role a probate judge plays in a probate case depends on how much intervention is required. A case in which the decedent left behind a Last Will and Testament and has a relatively simple estate, for example, may require minimal oversight from the judge. In contrast, a judge may need to intervene more frequently if the estate is complex, and especially if the decedent died without a Will (died intestate.) When it comes to intestacy, the judge will apply intestacy laws to determine how the estate should be settled on a case-by-case basis.
Their role can also be influenced by the players involved in a probate case, such as the personal representative or Executor, beneficiaries named in the Will, and other heirs defined by law that may or may not be included in the Will. Contests and claims against the estate often increase the need for judicial intervention. As mentioned earlier, a probate judge may at times have to accept claims made against the estate, examine evidence, conduct hearings and testimonies, and make rulings regarding a probate case. These complications will expand the judge’s role pertaining to the case and thus increase the timeline until the case can be closed.
The following sections explore the role of a probate judge in three probate case scenarios: estates with no Will, contested estates with a Will, Uncontested estates with a Will.
Estates with No Will
“Intestate,” or “intestacy,” is the term used to describe the scenario in which an individual passes away without a Will. When this is the case, the probate judge must first appoint a personal representative to manage the estate. This is because there is no Will that names an Executor. The personal representative essentially serves the same role as the Executor, except for the key difference that the judge selects this person, not the decedent. While personal representative rules can vary from state to state, it is usually the surviving spouse with adult children as the next option.
Once a personal representative is appointed, then the probate case proceeds relatively similarly as it would have if there had been a Will. Because the decedent did not express their wishes, the judge will instead use state intestate succession laws to determine how property should be distributed. The heirs are determined by law.
Contested Estates with a Will
When an estate becomes contested, then the probate judge will have to provide more intervention regarding the proceedings of the probate case. Although a decedent can leave behind a Will dictating how they wish for their estate to be distributed, disagreements and in-fighting can still happen. Executors, beneficiaries, and heirs defined by law are all players who can be the cause of strife requiring legal oversight. For instance, an heir-at-law may have been left out of the Will and thus challenges the validity of the document. The judge will then have to gather evidence and make a ruling regarding the validity of the Will. They also need to determine whether they were left out intentionally or were disinherited by accident.
A probate judge may also need to intervene if any disputes arise. For instance, beneficiaries may not agree with the Executor’s decision-making, or the manner in which they are managing the estate. Disagreements can prolong the probate process, so the judge may be called to settle such disputes.
Uncontested Estates with a Will
Last but not least, there are estates that have a Will and remain uncontested. This type of estate administration makes the probate judge’s job much easier. The decedent made their wishes known by leaving behind a Will, and there are no legal disagreements amongst the players of the estate. Here, the judge’s duties are relatively minimal, such as reviewing and signing orders that are submitted by the Executor.
How Do You Become a Probate Judge?
The path to becoming a probate judge is anything but easy. Someone aspiring to become a judge of any kind must first begin with a law degree and the passing of their state bar exam. Only after holding a law license and serving as an attorney for several years can a law professional become a judge. The specific requirements for serving as a probate judge vary from state to state.
Probate judges are appointed to their roles through appointment, selection, or election. Elected judges serve terms that range between 6 and 10 years. They hold the position through election and re-election. In contrast, an appointed probate judge is someone who was hand-selected by their state governor. This may happen if there is a vacancy and the state or county happens to be in between elections. Legislative selections are rare.
Learn More About Probate
The probate process is an integral aspect of estate administration. With the exception of some property and assets, an estate must go through the probate process before it can be settled. Here, the probate judge plays an important role in the process that can influence outcomes of the estate. This guide provided an overview of the role they play, which varies from state to state and county to county. Further, their involvement in a probate case can range from minimal to intervention, based on the availability of a Will as well as complexity of the case.
Understanding the capacity in which a probate judge could potentially influence the outcomes of your estate is key. It’s a great motivator to prepare your Estate Plan, make your wishes known, and make it such that your estate distribution will be as streamlined as possible while minimizing the potential for family conflict.
To learn more about the probate process, be sure to read our guide, “What is Probate” which includes tips on how you can avoid the process altogether.
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