As with any court proceeding, decisions in probate can leave some parties nonplussed, to say the least. All probate is handled at the state level, and therefore the right of appeal from probate is entirely governed by the statutes of the local jurisdiction.
Identify the appropriate court of review. In most cases, appeal from probate goes to the local superior court. In others it might be directly to a state district court of appeal. The statutes of the state set forth the appropriate venue, but the website of the probate court might also explain where to file an appeal.
Identify grounds for appeal. An appeal is usually filed as a review of a decision to see if the judge incorrectly interpreted or applied a law. In probate there can be more subjectivity to decisions, such as whether an executor has a conflict of interest or breached his fiduciary duty. Appeals are usually based on legal and procedural, rather than purely factual, issues.
Write and file appellate brief. A person making an appeal to a higher court is called an appellate, and the brief she files in support of her appeal is called an appellate brief. This document should set forth the jurisdiction of the reviewing court, the standing of the appellate to make an appeal and the legal issues the appellate court seeks to have reviewed.
File a Notice of Appeal. When an order or judgment is appealed, a Notice of Appeal must be filed in the lower court, in this case probate. This notifies the court and all parties of the appeal, and stays any action further to the appealed order until the court of review acts on the appeal.
- Only parties to a proceeding can file an appeal. In probate, the parties are the decedents who have a legal interest in the estate; any creditors also having an interest in the estate; and any executors, trustees or other professionals charged with administering the estate.
- The decision of a district court of appeal can be reviewed by the state supreme court. If there is a federal issue in the appeal, it can ascend to the federal appellate system. Appeals from probate have risen to the level of the U.S. Supreme Court in rare cases. Though appellate advocacy is not always considered a legal specialty, it is a fairly legalistic field of practice that is usually difficult for a pro se litigant to master. Hiring or consulting an attorney for appeals is highly recommended.