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Probate Court: Inheritance And Equity Law

May 17, 2008
Probate court is a specialized court which mainly attends to matters regarding the estate of a person who has died. Depending on the state in which you reside, this type of court might also be referred to as Orphans Court, Court of Equity, Court of Ordinary or Surrogate Court.

The primary function of Probate Court is to make certain the assets of the decedent are properly disbursed to beneficiaries. A probate judge oversees the estate to enforce directives left by the decedent in their Last Will and Testament.

If a person dies Intestate (without leaving a Will), the probate judge assigns someone to administer the estate. Typically, this is a family member. However, in cases where no family members exist or cannot be located, the judge can authorize a court appointed estate executor.

Probate courts came into existence in the United State in 1784, with the first court established in Massachusetts. While several amendments have been made to the Constitution in regard to the authority of probate court, its main function has always been to provide distribution of assets and enforce equity law.

Equity law refers to any order which directs an individual to act or refrain from acting. The difference between equity law and laws regulated by courts of 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."

Within the United States, probate laws are regulated by each individual state. Although these laws vary from state to state, the vast majority require a decedent's estate to be overseen by an appointed estate executor or administrator. Estate executors are responsible for filing necessary documents including inventory, accounting and tax forms and the distribution of probatable assets to beneficiaries and heirs.

In addition to estate administration, probate courts oversee cases which require the enforcement of equity law. Common equity law cases include the institution of guardianship for an individual found to be incompetent of handling their affairs. Probate courts also oversee involuntary commitment of mentally ill patients to a state hospital.

Adoptions are oftentimes handled through the probate court system. Generally, individuals who engage in the adoption of a minor child are assigned an Assessor who will visit the home and gather information about the adoptive parents and living conditions. In most states it is mandatory for adoptive parents to appear in Probate Court for the final hearing.

Oftentimes, birth certificates are kept on file through the Probate Court. Depending on the state and jurisdiction of the probate court, individuals seeking information about unrecorded births, lost or destroyed birth certificates, or certificates which have not been properly or accurately files must contact the Probate Court to obtain or change information.

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

Last, but not least, probate courts oversee civil actions relating to probate including contesting of a Will, determination of beneficiaries, and presumption of death. Although most cases presented in probate court do not require a jury, civil action cases typically require a jury trial for proper disposition.
About the Author
Simon Volkov is a private investor who specializes in helping individuals liquidate their assets. From forthcoming Inheritance windfalls and understanding Probate Court processes, Simon Volkov offers a host of solutions to beneficiaries and heirs. Learn more by visiting www.SimonVolkov.com.
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