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Probate Court

Probate court refers to a specialty court which primarily tends to matters regarding the estate of a deceased person. Depending on the state and jurisdiction of this type of court, it may also be referred to as Orphans Court, Court of Ordinary, Court of Equity or Surrogate Court.

The main function of Probate court is to ensure assets of a deceased individual are properly disbursed. A probate judge oversees the decedent's estate to enforce provisions of the Last Will and Testament. If an individual dies without leaving a Will, (referred to as Intestate) the probate judge will assign an Executor to administer the estate.

Probate courts have existed in the United States since 1784, with the first court established in Massachusetts. Although many amendments have been made to the Constitution regarding the authority of probate court, its main function has always been to provide equitable distribution of assets and to enforce equity law.

Equity law refers to an order which directs an individual to act or to refrain from acting. The difference between laws regulated by courts of law and equity law is that court regulated laws pertain to legal doctrines or statutes, while equity laws are regulated by general guides known as "maxims of equity."

Each of the fifty states within the U.S. adheres to their own set of probate laws. Although these laws vary from state to state, nearly all require an estate to be overseen by an appointed Executor or Administrator. The estate executor is responsible for filing necessary documents including inventory, accounting and tax forms, and distribution of probatable assets to beneficiaries and heirs.

In addition to estate administration, the probate court oversees a variety of cases which require the enforcement of equity law. These include instituting guardianships for individuals found to be incompetent of handling their affairs or involuntary commitment of mentally ill patients to a state hospital.

Oftentimes, adoptions are handled through the probate court. Typically, individuals engaging in the adoption of a minor child are assigned an Assessor who visits the home and gathers information about the adoptive parents and living conditions provided. In most states, it is mandatory for adoptive parents to appear in Probate Court for the final hearing.

Birth certificates are oftentimes kept on file through the Probate Court. Depending on the state, individuals seeking information about unrecorded births, lost or destroyed birth certificates, or certificates which have not been properly or accurately filed must contact the Probate Court to obtain or change this information.

Many probate courts oversee applications for changes of name and marriage licenses. Typically, there is a nominal fee charged at filing and the process generally takes four to six weeks.

Last, but not least, probate courts may oversee civil actions relating to probate including contest of a Will, determination of heirs, and presumption of death. Although most cases presented in probate court do not require a jury, civil actions cases usually require a jury trial for proper disposition.


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Published on May 02, 2008 at 10:22 PM

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