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Surrogate Court & Estate Planning: What You Need to Know

What is a surrogate court and what connection does it have to estate planning? Learn more about the role of surrogate courts here.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

The American court system is intricate, and there are nuances and variations that are specific to each jurisdiction. Because of this, you may have never heard of a Surrogate Court before. This is a type of court that deals with administering the estate of a person who has passed away. However, it is a part of the larger probate court system, and may or may not exist in your county. Keep reading to find out what a Surrogate Court is, when it is used, and how it may be relevant to you in the context of planning your estate.

What is a Surrogate Court?

Surrogate Court, or Surrogate’s Court, is a specific type of court that oversees the administration of an estate, including the probate of Wills, in certain cases. They may also be involved when an individual dies intestate, or when they have no Will in place. The Surrogate Court definition specifies that it is a court of limited jurisdiction, meaning that it cannot take on every type of case. We will explain this shortly. 

Surrogate Court vs Probate Court - What’s the Difference? 

You may be familiar with the term “Probate Court” in relation to administering estates, as it is the term used consistently across states and in estate planning-related literature. The terms Surrogate Court and Probate Court are used interchangeably. 

It’s helpful to think of a Probate Court as any type of court that deals with probate cases and matters pertaining to a person’s death and their estate. This might be a Probate Court, Surrogate Court, Superior Court, District Court, etc. The court that handles these cases various from state to state, and sometimes from county to county.

More specifically, a Surrogate Court is overseen by a Superior Court that handles matters of probate with limited jurisdiction.  This means that it only handles certain types of cases. Other cases may be escalated to the Superior Court when needed.

What Does a Surrogate Court Do?

Typically, a Surrogate Court has the agency to handle probate matters, including admitting a Will to probate and appointing an Executor. It can also provide an Executor with Letters of Testamentary, which is a court document that gives them agency to handle matters of the estate. Surrogate Courts also appoint administrators to manage the affairs of a person who dies intestate (without a Will), or handle issues of adoption and guardianships. 

Surrogate Courts only handle uncontested matters. An Executor will file a Will to open probate through a Surrogate Court, which will handle the probate as long as there is no doubt or difficulty. If any entities contest the Will, the Surrogate Court cannot dispute the controversy.

Any cases that face difficulty, objection, opposition, dispute, or caveats are escalated to the Superior Court. 

When cases are straightforward, the Surrogate Court can ensure that an Executor or Administrator is appointed, and see to it that assets and property are distributed to beneficiaries of the decedent. Further, they can see to it that guardians are appointed to any minor children.

How Long Does Surrogate Court Take?

The process of Surrogate Court, or probate in general, begins when an individual files a petition for probate with their respective court system. This is usually a family member of the deceased person, and is also typically the person who has been nominated as the Executor of the estate. 

The court then opens probate and then provides legal agency to the Executor who will manage the affairs of probate. This includes paying debts out of the estate and distributing assets to heirs. 

However, remember that as soon as any aspect of the estate is contested, the case may be escalated to the Superior Court, which can push out the timeline.

The length of the probate process varies. Most states estimate that the process can take roughly one year, from beginning to end. However, certain factors can lead to potential delays. 

What States Have a Surrogate Court?

Earlier, we described how the terminology and intricacies of court systems vary from state to state. Some states have a probate-specific court that is overseen by a higher court system, such as a district or superior court. In other states, probate-related cases are administered by a Superior, District, or Circuit court.

New York and New Jersey are the only two states that have Surrogate Courts. Other states use the term “probate” instead. 

Below you’ll find a list of states that have either a Probate Court or Surrogate Court:

  • Alabama

  • Connecticut

  • Georgia

  • Maine

  • Massachusetts

  • Michigan

  • Minnesota

  • New Hampshire

  • New Jersey

  • New Mexico

  • New York

  • Ohio

  • Rhode Island

  • South Carolina

  • Texas

  • Vermont

Other Common Questions About Surrogate Court

So far, we have addressed some general information about Surrogate Courts. However, its definition is admittedly confusing, as is often the case when it comes to the intricacies of our judicial system. Here are some answers to frequently asked questions that may help provide additional clarification.

Why Is It Called Surrogate's Court?

If you aren’t a legal or estate planning professional, the term “Surrogate” may seem like a strange name for a court and its judge. When we think of the word “Surrogate,” we often associate it with the legal arrangement in which a woman carries and births the biological child of another couple. 

However, the Surrogate’s Court almost always has nothing to do with this type of arrangement. Instead, it has everything to do with administering the estate of a deceased person. Naturally, you may be wondering why it’s called this name.

According to the New York State Bar Association (NYSBA) Journal, the term “Surrogate” in the context of estate administration is only used in New York and New Jersey. Other states use the term “probate” instead. 

The roots of the word date all the way back to the feudal system in England. The history is long and convoluted, but essentially, the Church of England used to have oversight over certain administrative duties such as matters of probate and the estate. This was long before the separation between Church and State, and the marriage between Church and Crown was going strong.

The presiding bishop in each district had the authority to appoint a “Surrogate” to keep court in their absence. (The word “Surrogate” is derived from the Latin word for substitute.) These substitutes had the agency to prove Wills and other related administrative actions.

This historic term was brought over to the U.S. when it was colonized. The term “surrogate” simply means substitute and represents how the Surrogate Court is an appointed substitute that can handle probate matters on the behalf of the Superior Court. 

What Happens at a Probate Court Hearing?

The probate process can include multiple hearings. At the first hearing, the probate judge will typically explain the responsibilities to the Executor of the Will. They may be required to contact beneficiaries or creditors, appraise assets, and make sure that outstanding debts and taxes are paid. 

At the second hearing, the judge will verify that all action items are complete and will close out the estate. After this closing, the Executor can then ensure that any remaining property is distributed to the beneficiaries of the estate. 

Create Your Estate Plan Today

The ins and outs of the Surrogate Court (also known as Probate Court) can be confusing, but it is an important process of Estate Plan administration. 

Although the description of the probate process can make someone’s eyes gloss over if it has nothing to do with them, it can suddenly become relevant. Almost all of us have reasonable odds of being appointed as an estate Executor for a loved one at some point in our lives. All of a sudden, we might find ourselves in the need to understand the intricacies of the process, and fast. Regardless of your role in the estate planning process, it’s always a smart idea to be educated on what may or not happen, and why. 

It’s also beneficial to understand the complexities of probate if you are planning an estate, so that you know what will happen when you pass away. It can be a lot to ask of someone to serve as your Executor, so it’s a good idea to understand all that their duties will entail before you nominate them.  Learn about the ins and outs of the probate process here

There are certain estate planning tools that can reduce the burden of the probate process. For instance, you can set up a Trust to remove assets from your personal estate and thus out of the probate system. Some individuals will even choose to move all of their assets into the ownership of a Trust and take themselves out of the equation completely. Read more about Trusts here to learn if this might be the right tool for you. 

Putting a solid Estate Plan in place is the pathway to achieving the outcomes you want. Too many Americans pass away without a Will, and the destiny of their hard-earned legacy is left in the hands of the probate judge and intestacy laws. Even if you have a Will, you could have taken it one step further by setting up a Trust to avoid probate altogether. Education and planning are the key, and all you have to do is muster the courage to get started and you’ll be well on your way! Whether you want to set up a Will, a Trust, or both, we can help you make that happen! Find out how you can get started today.

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