Who is the judge?
A probate judge is a civil court judge and a state judicial official. The judge oversees the probate case filed in the civil probate or family court. The cases the judge handles may include the estates of deceased persons, but competency and guardianship issues. Estate matters are the most common cases the probate judge will preside over.
What is the judges role in an estate or probate case?
A probate judge’s role in the administration of an estate can vary based on whether the deceased left a last will and testament, or if they passed intestate and did not leave a valid will. The other variable is the size of the estate. In Florida if the value of the estate is less than $75,000 then a Summary Administration can be done as opposed to a full probate case.
The judge’s exact duties can also vary depending upon whether everyone—the personal representative or executor of the estate, the heirs-at-law, and the will’s beneficiaries—gets along and whether a will contest is filed.
The judges role in Summary Administration
Most states have provisions in place that allow certain small estates to pass property to beneficiaries through a simplified, informal, or “summary” probate process. These proceedings can involve very limited court involvement and would require very little participation by the judge.
For example, this option is available for estates valued $75,000 or less in Florida outside of the homestead property. Barring complications, survivors don’t have to appear in court to transfer these estates to beneficiaries or heirs. Once the judge signs off on the valuation and creditor payments the administrator can then move to disburse the balance of the estate to the legal heirs.
The judge in larger estate with an uncontested will
An estate is said to be uncontested when the decedent leaves a last will and testament and everyone involved agrees with the terms of the will so there are no major disagreements. The probate judge’s role in the administration of the estate is typically minimal in this case. They’ll review and sign orders as they’re presented by the personal representative, or by an attorney who might have been hired to assist the personal representative.
Probate court orders are generally necessary to allow the estate to wrap up one aspect of the process so it can move onto the next.
Common orders include those that officially open the estate and that formally appoint the executor to act on behalf of the estate. Orders are necessary to authorize the sale of estate assets if this is necessary so the decedent’s creditors can be paid. An order is generally required to close the estate when the probate process is completed.
The judge in larger estates with a contested will
The probate court judge is much more involved if the decedent left a will and there’s any disagreement the personal representative, the beneficiaries, and/or heirs-at-law. The judge will address challenges made by the heirs-at-law as to the will’s validity.
Take this case as an example. An adult child would have been entitled to inherit if their father had died without a will. They might file a will challenge if there is a will and they’re not mentioned in it so they receive nothing. The judge would have to determine if the omission was intentional and if the decedent meant to disinherit the heir-at-law.
In my own father’s will his children were left with $25 each and the estranged daughter of his second wife was to get everything else. Since we knew his second wife and her attitude toward his children we knew she had put him up to that. Our lawyer told us the $25 was put in there to keep the will from being contested because his children did get something. Needless to say that didn’t work and we contested the will and won.
The judge would ascertain if there was some other problem with the will’s form so it doesn’t meet the legal requirements of the law. The adult child might have an older will or a newer one that does include them. It would fall to the judge to determine which will should be honored in this case.
The judge might also be called upon to settle other disputes between the personal representative and the beneficiaries. These can range from perceived problems with how the personal representative is administering the estate—there are often complaints that they’re taking too long—to disagreements among the beneficiaries as to how certain estate assets should be handled.
“Grounds” or reasons to contest a will can also include:
- That another individual or individuals coerced the decedent into including certain terms in the will
- That the will doesn’t conform to state law, such as because it lacks sufficient witness signatures, so it’s not valid and its terms can’t be enforced
- That the decedent wasn’t of sound mind at the time they signed the will
Challenges to a will typically result in full-fledged litigation and a trial over which the probate court judge must preside. In my own case the probate took two years to finally get resolved.
The judge in intestate cases
The probate judge’s first order of business when an estate is intestate is to select a personal representative to manage it through the probate process because there’s no will naming one. A personal representative serves the same function as when there is a will, but the appointment is left to the judge because the decedent didn’t make their wishes known. Many times the preference is to appoint a blood relative in the line of succession.
Probate judges can be confined by legislative statutes and rules in some states when it comes to who they can appoint as personal representative. The surviving spouse often has the first right to the job, and adult children would be next in line if the spouse doesn’t want the responsibility, or is incapable of taking it on for some reason.
The probate judge can usually appoint someone as personal representative if the heirs-at-law all agree to this appointment. The probate judge’s role in the administration of the estate would most likely be minimal beyond this point, assuming that the heirs-in-law get along. The judge would simply sign orders as the estate progresses, much as they would with a testate estate where there was a will.
The steps in probate the judge will sign off on
The probate judge oversees and approves all the steps of probate administration after a personal representative is appointed under his order.
A typical step involves gathering the decedent’s assets. This might involve the personal representative taking actual possession of personal property, or just locating and logging in a file assets like investment accounts, bank accounts, and insurance policies.
Creditors must be notified that the decedent is no longer living, and they must be given a period of time to make legal claims for the money the decedent owed to them. In Florida this is ninety days. The personal representative must post a notice in a local newspaper in the format required by law for two weeks. Then they must wait until ninety days from the date of the first publication to insure all the creditors have submitted their claims. The personal representative is then charged with determining whether these claims are valid and, if so, paying them from estate funds.
The matter will often move into a courtroom if the personal representative denies a creditor’s claim because they don’t believe it’s valid. This, too, will most likely result in litigation so the probate judge can determine whether the creditor should be paid. In my father’s case my mother had a judgment against my father. She submitted that to the court and the step-daughter contested it. So we were back in court to have the judge determine if it was legally valid.
The personal representative is responsible for distributing the remaining property to beneficiaries according to the terms of the decedent’s will after all creditors are paid or their claims are resolved. The decedent’s assets would go to their heirs-at-law according to state law if they died without a will. Both scenarios require the approval a final, signed order from the judge to close the estate.