The role of the probate judge differs from state to state. In many states, The probate judge may administratively handle the transfer of assets, verifying that all forms and rules for notice, reporting, valuing, accounting, and transfer are adhered to. The probate judge may hear and decide all estate and trust litigation, the appointment of guardians and/or conservators, and the civil commitments for drug, alcohol, and mental health issues. In some states, probate judges oversee adoptions and juvenile issues, sharing responsibilities that may be thought of as what Family Court judges do. In some states, probate courts are where you apply for a marriage license.
No. All states have laws and courts addressing these matters. However, the jurisdiction for probate, trust, guardianship, conservatorship, involuntary commitment of seriously mentally ill persons, adoptions and juvenile matters vary state to state and these matters are assigned to different named courts. The most common names of the courts exercising jurisdiction of these noted matters are “probate courts,” “chancery courts,” and “orphan courts”. In some states, jurisdiction of these noted matters is vested in the “circuit” or “general sessions” court and handled by judges on a rotational basis.
Generally, a person has the legal right to represent themselves without a lawyer in a probate legal matter. Nonetheless, persons engaged in litigation are encouraged to have a lawyer to represent them because courts and their staff are generally prohibited from giving any legal advice to anyone and a litigant not trained in the law may find that the administrative process of completing forms, following the rules for notice, reporting, valuing, accounting, and transfer is something you feel comfortable doing without the guidance and support of a lawyer. Additionally, in a contested evidentiary hearing typically rules of procedure and evidence govern how the evidentiary hearing is conducted. Failure to comply with these rules can negatively impact a person’s claim or request for relief and damages.
This will vary from state to state. Most probate records are public. Some privacy settings may be in place to protect the assets and/or the heirs from predatory behavior and identity theft.
Most states have a simplified, faster process to transfer title of personal property assets of minimal value belonging to a decedent at the time of death. Typically the small estate proceeding cannot be utilized where the decedent owned real estate at the time of death that needs to be transferred to an heir at law or beneficiary. The amount to qualify for a small estate proceeding differs by state.
The fees involved in a probate proceeding are going to differ from state to state depending upon:
This depends on the type of hearing, but typically the probate judge will hear the issue, the testimony of the parties and their witnesses, review documents on file, and other exhibits like bank records, and then decide the issue for the parties.
This process varies from state to state. There may be a process to demand or request a hearing for estate review. You may need to file a petition requesting an accounting or the removal of the current personal representative.
The general title for the person responsible for managing a decedent’s estate is “personal representative.” If there is a last will and testament that has been admitted to probate, the person nominated by the decedent in the last will and testament will usually be appointed as the personal representative. In testate estates the former term for the personal representative used was “executor” (if the person appointed was a male) or “executrix” (if the person appointed was a female. In intestate estates the probate court will appoint the personal representative. Most states provide a priority of appointment to persons married or closely related to a decedent in intestate estate administrations. This priority of appointment varies state to state.
Per stirpes and per capita are two (2) different types of stipulations that a person can include in a last will and testament. The distribution of assets can change based on which one is chosen. Both per stirpes and per capita only come into play in a scenario in which a beneficiary passes away before the testator (person making the last will and testament). Per stirpes means that the beneficiary’s inheritance will be passed on to their next-in-line heir, or heirs. Per capita means that the beneficiary’s inheritance would be divided evenly amongst any surviving beneficiaries.
In a last will and testament, per capita describes an asset distribution arrangement in which if a beneficiary dies before the testator (person making a last will and testament), the testator’s estate will be distributed evenly amongst the surviving beneficiaries.
Per stirpes is a legal term often used in estate planning, including in last wills and testatments. It designates who should inherit a designated asset (or assets) if the original beneficiary dies before the testator (the person writing the will). In Latin, per stirpes means "by branch" or "by roots." In a will, it signifies that the beneficiary's share of an estate will go to that beneficiary's descendants or heirs.
A testator is a person who creates a last will and testament that outlines how their assets will be distributed after their death. This term is used to refer to individuals who leave behind a legally binding document detailing their final wishes regarding property and assets. Historically, the term "testatrix" was used for female testators, but today "testator" is used for all genders.
An illegitimate child is one born out of wedlock. English common law treated the illegitimate child as being the child of no one, which was harsh since the child had no responsibility for its birth. Nowadays, an illegitimate child is legally considered the child of the natural mother. However, to be considered the child of the natural father, the child must prove paternity. Although jurisdictions differ as to requirements, paternity may be established if the father marries the mother; the father acknowledges the child; or the father's paternity was established by adjudication. Under the Uniform Parentage Act, a presumption of paternity exists where the father takes the child into his home and raises it as his own, or, where the law allows, the father acknowledges paternity by filing the necessary documents with a court or designated administrative agency. If there is a presumption of paternity, the child can bring an action to establish paternity at any time; if there is no presumption, then the action must be brought within three (3) years of the child reaching the age of majority. Under the Uniform Probate Code, which most states have adopted, at least in parts, there is a presumption of paternity where the father treats the child as his own and provides support for it. In some jurisdictions, a presumption of paternity can arise if the relatives of the father treat the child as the child of the father and provide support for it.
An “heir at law” is a person legally entitled to inherit from someone who died without a valid last will and testament. “Next of kin” refers to a deceased person's closest living relative(s). Individuals who count as next of kin include those with a blood relation, such as children, or those with legal standing, such as spouses or adopted children. A person's next of kin often takes precedence over others in inheritance cases, especially when a last will and testament is not admitted to probate.
“Issue” refers to a deceased person’s lineal descendants, which includes not only a decedent’s children, but also their grandchildren, great-grandchildren, and so on. This term is used to determine the distribution of a person’s property under intestate succession laws. It is important to note that the term “issue” can have legal implications in the context of wills and trusts, where it can affect the beneficiaries’ rights and the distribution of the decedent’s estate.
In an intestate probate proceeding, no last will and testament has been proven to be the last will and testament of the decedent. In a testate probate proceeding, the decedent died with a last will and testament, which has been “proven” by a court of competent jurisdiction and accepted for probate.
If someone dies without writing a last will and testament, they have died "intestate." Each state has specific laws governing the distribution of property when a person dies intestate, and most laws are generally the same. When a person dies without a will, generally the laws of the state of the decedent at the time of death will determine who is entitled to the assets of the decedent. However, assets located in another state may be treated according to the laws of the state where the property is located.
Even if the intestacy law in a person’s resident state is how that person wants their assets to transfer at death, there are other reasons a person should consider having a will, such as stating who should administer the estate, the need to file accountings, posting bonds, etc. The expense of administration of the estate may be reduced depending on the provisions of the last will and testament.
A last will and testament is a person’s instructions about the use and disposition of their assets upon their death. A document purporting to be a person’s last will and testament must be “proved” (the Latin root word for “proved” is “probate.”) to be a person’s last will and testament in a court of competent jurisdiction, before it becomes legally effective. A person can amend, supplement and replace an existing “last will and testament” at any time provided the formalities of execution of the state where the person resides are met and the person has legal capacity at the time of the execution of the amendment, supplement and/or replacement document.
The time varies from state to state. It also varies based on the existence of any issues or disputes between the parties in interest in the estate. Generally speaking, a probate estate must be open at least six (6) months to enable any creditors of the decedent to file claims. Additionally, many states have an abbreviated or “small estate” process if there are minimal assets that need to be legally transferred. The time period for the “small estate” process is generally shorter in duration.
If there are assets that need to be legally transferred through the probate process, then the last will and testament should be offered for probate. Generally speaking, if there are no assets that need to be legally transferred through the probate process, there is no requirement to probate the decedent’s last will and testament. There are some special circumstances that might warrant utilization of the probate process even though there are no asset title issues or concerns. A lawyer with probate legal experience should be consulted to make the determination as to the need to utilize the probate process.
No. Generally, the need to utilize the probate process depends on whether there are assets that are not legally transferable due to the way they are titled. If there are no title transfer issues, normally one would not need to initiate a probate process. There are some special circumstances that might warrant utilization of the probate process even though there are no asset title issues or concerns. A lawyer with probate legal experience should be consulted to make the determination as to the need to utilize the probate process.
When a person passes away and owns asset(s) that are not legally transferable due to the way they are titled, the probate process provides the means to properly transfer the asset(s) to the devisees or beneficiaries under a last will and testament or, without a last will and testament, the intestate heirs under state law.
A “guardian of the person” is appointed by a court of competent jurisdiction to address an incapacitated person’s food, clothing, shelter and medical needs or to address the needs of a minor without parents. A “guardian of assets” is appointed by a court of competent jurisdiction to manage and protect the assets of an incapacitated adult or minor.
Conservator is the modern term utilized for “guardian of assets” in many states.
Generally speaking, a person who is unable to manage property and business affairs because of:
Generally speaking, a family member or any interested person, with the priorities as follows:
A conservator may be appointed when an incapacitated person is unable to manage property and business affairs; and
Without court authorization the conservator may:
Upon death
Upon resignation of the conservator
Upon exhaustion of all assets of the conservatorship estate
The legal determination of incapacity is terminated
The minor child becomes an adult
Generally, yes, a conservator must post a bond. The amount of the bond will be based upon the value of the assets being administered by the conservator. The bond requirement can be waived in certain circumstances.
Generally, yes. Each conservator must complete an inventory of the estate immediately and file it with the supervising court within a specified time period after appointment.
Yes, generally a conservator must give an accounting to the supervising court periodically (as specified by the supervising court). Generally, an accounting is also required upon resignation or removal of the conservator.
Any qualified person may be appointed. However, most states specify an appointment priority approach. The general priority approach used in most states is:
A court of competent jurisdiction may appoint any person who will act in the best interest of the minor. However, if the minor is 12 to 14 years old or older (depending on the state of residence), the minor has the ability to nominate a guardian, which nominee must be appointed unless the appointment is contrary to the minor's best interest. Also, a parental nomination has priority.
Yes, generally in a last will and testament a parent may appoint a guardian for a minor child or for an unmarried incapacitated child.
Yes, generally in a last will and testament a person may appoint a guardian for his or her incapacitated spouse.
Generally, no.
Generally, no.
Generally, no.
Legitimation is the legal process by which a biological father not listed on a birth certificate of a child may be declared the parent of a child born out of wedlock and may seek to change the child’s name. The process varies state to state.
Yes. In some states, the mother of the child is permitted to consent in writing to the legitimation and waive the requirement of a court hearing.
Adoption is a process whereby a person assumes the parenting of another, usually a child, from
that person's biological or legal parent or parents. Legal adoptions permanently transfer all rights
and responsibilities, along with filiation, from the biological parents to the adoptive parents.
Unlike guardianship or other systems designed for the care of the young, adoption is intended to
effect a permanent change in status.
In the United States, the legal system is largely based on English common law. But the state of
Louisiana is unique in being strongly influenced by French and Spanish legal traditions in its
civil code. Spain ceded the Louisiana territory to France in 1800, which in turn sold the territory
to the United States in 1803. The 10th Amendment to the U.S. Constitution grants states control
of laws not specifically given to the federal government, so Louisiana's legal system retains many
French elements. English common law did not permit adoption since it contradicted the
customary rules of inheritance. In the same vein, France's Napoleonic Code made adoption
difficult, requiring adopters to be over the age of 50, sterile, older than the adopted person by at
least 15 years, and to have fostered the adoptee for at least six years. Modern systems of
adoption, arising in the 20th century, tend to be governed by comprehensive statutes and
regulations. Generally speaking, since adoption is a creature of statute, the laws of the state
where the adoption is occurring must be strictly complied with.
Generally speaking, a person can represent themselves in an adoption proceeding. However,
because adoptions are a creature of statute, the laws of the state where the adoption is occurring
must be strictly complied with, otherwise the adoption request will not be approved. Consequently, persons seeking to adopt a child are strongly encouraged to obtain legal counsel to assist them.
There are many entities that provide information about the adoption process and procedure.
These include the following:
Involuntary civil commitment refers to the legal process by which a judge orders an adult with
severe symptoms of mental illness, such as delusions or paranoia that may contribute to an
unwillingness to receive treatment, to receive inpatient psychiatric treatment or supervised
outpatient treatment without the individual’s consent. Each state has laws that regulate
involuntary civil commitment.
“Serious mental illness” (SMI) is characterized as any mental disorder that impairs seriously or
severely from one to several significant life activities, including day-to-day functioning. Five
common examples of SMI include bipolar disorders, borderline personality disorder, psychotic
disorders (i.e. schizophrenia), post-traumatic stress disorders, and major depressive disorders.
People having SMI experience symptoms that prevent them from having experiences that
contribute to a good quality of life, due to social, physical, and psychological limitations of their
illnesses.
Yes. These vary state to state. For a good discussion regarding 14th Amendment Due Process
Protections in the context of civil commitment, see: https://www.congress.gov/crs-product/R47571
Two good sources for information are: