What is a Probate Judge, and What Do They Do? - Werner Law
What is a Probate Judge, and What Do They Do? - Werner Law

What is a Probate Judge, and What Do They Do?

A probate judge works in the civil court, and like any other judge, serves as a judicial officer of the state. Probate judges play a central role in the probate process, overseen by the titular probate court, or as it’s known in other states, the surrogate’s court.

Probate judges make the final call for important decisions throughout the probate process and oversee the legitimization and execution of a will or the distribution of an estate as per intestate law in the absence of a will.

Probate judges also play a central role in probate disputes, will litigation, and other cases where a will or decision is contested.

The Role of the Probate Judge

The exact duties, responsibilities, and day-to-day decisions of a probate judge depend on the jurisdiction they work in, and the case they are presiding over. However, when speaking broadly, a probate judge’s duties can be defined under three common circumstances.

If the estate is simple, and the estate plan is comprehensive, the judge’s role in the probate process is minimal. They may name an executor, or simply grant administrative powers to the person the decedent chose as executor in their will. They oversee the executor’s actions and duties, granting authority to distribute the estate after everything has been accounted for, and eventually closing the estate after every debt was paid, every creditor was satisfied, and every beneficiary received their share.

If no will exists, and no comprehensive estate plan is available, the judge’s role becomes a little more involved. It becomes their duty to invoke local intestate law and ensure that the named executor distributes the estate as per intestate succession.

Intestate succession is different from state to state, but generally declares that half goes to a surviving spouse, and the remainder to the children, or the next of kin, up to a certain limit (great-grandparents and second-degree cousins generally do not inherit under intestate rules, neither do family friends, unmarried partners, or depending on the state, the relatives of deceased spouses).

Once the estate is distributed as per intestate law, the judge closes the case. Once again, it remains a matter of public record.

Finally, the third circumstance under which a probate judge’s role may change drastically is the presence of a contested will, or trouble between beneficiaries.

Be it accusations of elder abuse or will fraud, probate judges take on the duty of accepting and deliberating the evidence and weighing all available information. Will contests can take years, much longer than the average probate process, and end with a judge’s decision on the matter based on multiple hearings, testimonies, and presented evidence.

As with other cases, the judge’s ruling can be appealed, resulting in an even longer process. However, an appeal is not handled by the same judge. Instead, the case is pushed up to a higher court.

The Basics of the Probate Process

Understanding a probate judge’s duties requires the context of the full probate process. Most of the legwork is handled by the executor or administrator of the decedent’s estate, usually their closest family, a trusted friend, or their estate planning attorney.

It is typically this person who first files for probate in the county in which the decedent resides, utilizing their death certificate. Once probate is opened, a judge will officially name the executor and grant them the powers they need to assemble the decedent’s full estate, take inventory of the estate, establish its total value, and notify all beneficiaries. The judge will also review and legitimize the will.

A legitimized will is not always something to take for granted. Some wills are legitimized much easier than others – witnessed, signed, and notarized wills will carry more weight than a holographic or verbal will.

After an executor has gathered the inheritance, the inheriting, and the instructions left behind on how to inherit, probate begins. The first order of business is usually assessing and paying off the decedent’s debts and final financial obligations, as well as notifying all creditors.

Creditors have until a set date (from state to state) to file their claim against the estate before their claim is considered forfeit. Only once an estate has been reduced to its net total can it be distributed among its respective beneficiaries, either as per testate (a will) or intestate rules.

Things become considerably more complicated when an estate is composed of assets across state and national borders. Larger, more convoluted estates will demand much more work on both the judge’s and the executor’s part.

Additional probate cases (ancillary probate) must be opened for each state in which a decedent owned property, before consolidating everything into one major legal effort. It is for these larger estates that a comprehensive estate plan is especially important, as it can minimize or even outright skip most of the probate process, and drastically reduce the stress, cost, and time sink of the inheritance process.

What Does It Take to Become a Probate Judge?

The path towards becoming a probate judge begins in law school, and with the passing of the state bar exam. All probate judges are lawyers first and must have held their law license for several years before they can become probate judges. The exact requirements – including age and residency – vary from state to state, and jurisdiction to jurisdiction.

Once you’ve become a legal professional, you become a probate judge either through appointment, selection, or election.

Most elected probate judges are elected through local non-partisan elections, with terms ranging between six to 10 years. The position is usually held through continued re-election, via approval from the populace. Appointed probate judges, on the other hand, are chosen by state governors, in cases where a county or state has a vacancy in its judicial body and is between election years. Rarer still is an appointment as probate judge via legislative selection.

Conclusion

Whether a probate judge is heavily involved in a probate case, or only plays a minor role, depends on the decedent’s estate plan, the competence and availability of the estate’s executor, and the disposition and relationships of individual inheriting family members and beneficiaries.

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