What Are the Duties of a Probate Judge?

By Joseph Nicholson
Probate judges may hear cases contesting wills.

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The duties of a probate judge vary according to state laws and how the court system of the state is organized. In some states, the probate judge has civil and criminal responsibilities beyond what's typically understood as probate. Generally, though, probate refers to the administration of the estate of a recently deceased (or believed to be deceased) person.

Identification

The first and most important duty of a probate judge is to confirm that an individual qualifies for probate, that is, that she is legally deceased, and to examine any wills submitted on her behalf. The word "probate," in fact, is based on the Latin root meaning "to prove." The primary task of the probate court is to prove the validity of an initial probate filing and the legal wills submitted for administration. Depending on the laws of the state, disappeared persons who have not been located after a considerable period of time can have their estate probated as if deceased.

Features

Several different factors go into determining the validity of a will, such as the date of its execution, whether it was handwritten or typed, and how it was witnessed. Further complications arise if the will has been amended, if previous wills exist, or if the decedent was divorced subsequent to the making of the last will. Many states invalidate existing wills upon divorce or marriage, but allow for older wills to be enforceable in part if they do not conflict with the most recent will. Some provisions of a valid will could be deemed unenforceable. Establishing the precise terms to be enforced is an important role of the probate judge.

Types

Not everyone dies with a valid will. These estates are called intestate, and are governed by the state's laws of intestacy. And, whether an estate is testate or intestate, it can also be either contested, meaning there is significant controversy among the heirs, or uncontested. The probate judge will have a heightened role in a contested estate, where there is a greater probability of various challenges to the will and objections to the actions of the personal representative.

Function

Appointing and supervising the personal representative is the next major function of the probate judge, once the probate estate has been opened and the terms of the will (or relevant laws of intestacy) have been determined. If there is a valid will, the personal representative will usually be named in the will, and that individual has a strong likelihood of being appointed by the court. If there is no will, or the named representative is unavailable or unwilling, the probate judge has the responsibility of naming a representative. This can either be a person nominated by an interested party to the estate (beneficiary or creditor) or a professional trustee or attorney. The personal representative accepts a fiduciary duty to the beneficiaries, and determining whether he has breached this duty is another responsibility of the probate judge.

Considerations

In addition to administering an estate, probate judges in different jurisdictions have various other duties. The probate judge can issue orders related to property of a probate estate, such as the opening of safe deposit boxes. The judge's office can issue certificates of survivorship, and must regulate the court's schedule in a way that maintains the integrity of each individual case. In some states, probate judges have some family law responsibilities, such as appointing guardians for children, approving name changes, and issuing marriage licenses.

About the Author

Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.