A probate court (sometimes called a surrogate court) is a court that has competence in a jurisdiction to deal with matters of probate and the administration of estates. In some jurisdictions, such courts may be referred to as Orphans’ Courts, or courts of ordinary in Utah they are call District Courts.
In some jurisdictions probate court functions are performed by a government, internal court or another court of equity, or as a part or division of another court.Probate courts administer proper distribution of the assets of a decedent (one who has died), adjudicates the validity of wills, enforces the provisions of a valid will (by issuing the grant of probate), prevents malfeasance by executors and administrators of estates, and provides for the equitable distribution of the assets of persons who die intestate (without a valid will), such as by granting a grant of administration giving judicial approval to the personal representative to administer matters of the estate.In contested matters, the probate court examines the authenticity of a will and decides who is to receive the deceased person’s property. In a case of an intestacy, the court determines who is to receive the deceased’s property under the law of its jurisdiction. The probate court will then oversee the process of distributing the deceased’s assets to the proper beneficiaries. A probate court can be petitioned by interested parties in an estate, such as when a beneficiary feels that an estate is being mishandled. The court has the authority to compel an executor to give an account of their actions.In some jurisdictions (e.g. Texas) probate courts also handle other matters, such as guardianships, trusts, and mental health issues (including the authority to order involuntary commitment to psychiatric facilities and involuntary administering psychiatric medication).
Understanding Probate Court
A court creates probate records after a person’s death based on the contents of the deceased person’s will. Probate records dictate the distribution of the estate and the care of any dependents.Probate court is a segment of the judicial system that primarily handles such matters as wills, estates, conservatorships, and guardianships, as well as the commitment of mentally ill persons to institutions designed to help them. When wills are contested, for example, the probate court is responsible for ruling on the authenticity of the document and the mental stability of the person who signed it. The court also decides who receives which portion of the decedent’s assets, based on the instructions in the will or – barring that – other laws in place.The role of the probate court is to make sure that a deceased person’s debts are paid and assets are allocated to the correct beneficiaries. The term probate is used to describe the legal process that manages the assets and liabilities left behind by a recently deceased person. Probate is multifaceted in that it covers the overall legal process of dealing with a deceased person’s assets and debt, the court that manages the process, and the actual distribution of assets itself.Individual states have specialized probate courts. Some states do not call it a probate court but instead refer to it as a surrogate’s court, orphan’s court or chancery court.
The Process of Probate Court
The process of probate is initiated when a person files a petition for probate with the state’s probate court system. This petition is normally filed by a family member of the deceased or by a designator of the deceased’s will. The probate court then issues an order that appoints a person to be the executor or administrator of the deceased’s estate. The executor or administrator is responsible for allocating the deceased’s estate to the proper beneficiaries, among other administrative duties. A probate lawyer is often hired to help deal with the intricacies of probate.
Probate Court with a Will
When a person dies, the probate court determines if that person left behind a will. If so, the court probates the will, meaning that it looks into the validity of the will itself. If the will is valid, the probate court appoints an executor to allocate the deceased person’s assets to the proper beneficiaries. If the will is not valid or if it’s contested, the court reviews and decides the matter.
Probate Court without a Will
When a person dies with no will, the probate court allocates the person’s assets to his or her next of kin. This is known as the law of intestate succession, and it outlines the allocation mix between surviving spouses, grandchildren, siblings, parents, aunts, and uncles.
Probate records are those records and files kept by a probate court. The word probate comes from Latin and means “to prove,” in this case to prove in court the authenticity of a last will and testament of someone who has died. In the absence of a will, inheritance laws have provided for the passing on of property, belongings, and assets.Probate courts are under state jurisdiction. State probate laws have changed over the centuries. The kinds of records to be found in probate files have changed accordingly. Probate laws can vary from state to state but tend to follow certain general practices. The probate of the estate of someone who has died and has left a will is called testate. The probate of the estate of someone who has died but has not leave a will is called intestate.At times, probate courts have also had jurisdiction over other proceedings such as adoptions, guardianships for minors, and name changes after divorces. Probate records can usually be found in the court records of the county where the deceased was last living. In some cases, early records have been moved to other depositories such as state archives, to allow for better security, temperature and humidity control, and more space for newer records. As storage space and available facilities change, so do the sites of probate records.Probate records can give the historian invaluable information. For example, genealogists value the lists of heirs and devisees that indicate familial relationships. People researching material culture can learn much from household inventories. Historians trying to learn more about particular buildings often find useful information in real estate inventories.
Probate Research Steps
• Determine where the deceased was living at time of death.
• Find out where the records for that probate court jurisdiction at that time are now housed. Remember that the boundaries and names of counties might have changed. If the county (or state) has changed, then the records will be filed with the records in the county at the time of death, not under the county’s name as it is now. For instance, in Maine, parts of Lincoln County of 1760 are now parts of Kennebec, Waldo, Washington, Hancock, Androscoggin, Sagadahoc and Knox counties. Save yourself steps by using the Internet and the telephone to ask for and find the archive that you want. States and counties often have Web home pages.
• Find the index of the probate records you want. This will be at the archive that holds the probate records. Look on-line for a Web site of the likely archive. Many archives now have Web home pages with holdings information, telephone numbers, and directions for getting there. The probate index you want might even be accessible on-line. Some indexes and abstracts are also published or are on microfilm. Archives and research libraries can help you find these.
• If necessary, go to the archive.
• Look in the index for the deceased’s name. This will usually be listed alphabetically by surname. Find and note the docket number. Usually the date of probate is also listed, and this is usually fairly close to the date of death.
• Be thorough. Look also under the names of relatives of the deceased — you might be surprised to find a file full of relevant documents.
• Make a list of files you wish to see and give these to the clerk, who will retrieve the files for you. If the files are old and are in a storage facility off-site, it might take several days for the request to be filled. This is all the more reason to make the request on-line or by telephone if you can.
• If files are missing, and they sometimes are, probate record books might give some evidence of the probate. Probate record books are not likely to contain all the information that is/was in the actual file, however.
• Examine the files and make notes. The cost of making photocopies will vary from archive to archive. It may be as little as 15 cents per page to a dollar or more per page.
• Return the original file, as you found it, to the clerk.
• Label and file your findings, being sure to note the name of the archive, address, telephone number, Web site address, and the date you did your research there. I also usually pick up an information pamphlet at the archive and file it in a dated folder of its own along with address information, driving directions, and helpful archivists’ names, for future reference.
Documents You Might Find in Probate Files
The documents found in a probate file will vary radically. They may range from a single letter to a sheaf of court and family documents.
If the file represents proceedings to settle the estate of a deceased, its contents might include…
• a will, if there was one
• codicils (amendments) to the will
• a petition for an executor or administrator
• probate of the will
• a list of heirs or devisees
• an inventory of the deceased’s estate at time of death
• a report of the committee for partition when heirs cannot agree amongst themselves about how to divide the estate
• receipts from heirs and devisees
• a closing statement by the court
• an inventory of real estate and stocks and bonds held in joint tenancy, even though not part of the probate proceedings
If the file represents a name change, its contents might include…
• a petition for a name change
• a court decree
If the file represents adoption proceedings, its contents might include…
• a petition for adoption
• a deposition regarding the character of the prospective parents
Where do you find probate records?
County courthouses can contain probate records going back centuries. Once they are recorded at the county level, they never leave it, unless something happens to the courthouse and the records are destroyed. Burned courthouses were an issue in many counties across the nation in the 19th and early 20th centuries, and the bane of genealogists everywhere who want to access the records that were in them.Assuming the courthouse where your ancestor lived is still intact, you should be able to go there and look up their probate records in the court’s index, or get a court employee to help you find it. You will be finding the original probate records by going in person. If you can’t make the trip in person, such as with a courthouse that is far away, you can call or write the court to see if they will look up your ancestor in their records and send you any information they find in the probate files.Of course, not every person is going to leave a probate record behind, but a lot of people did. It is extremely worth it, genealogically speaking, to check to see if a probate record exists for your ancestor.
Ancestry.com just added a huge new collection of probate records from around the United States this year. These are the same probate records you would find in county courthouses. Ancestry.com sent representatives out to county courthouses across the country to get the courthouses to allow them to digitize their probate records. While not every courthouse complied, most of them did. You can now look up most of your ancestors’ probate records on Ancestry.com, rather than traveling to or writing a courthouse. The images are scans of the originals, and you can download and save them to your computer to add to your own genealogy records, and to refer to whenever you need to in your research.
If you have older relatives who have collected a large amount of family information over the decades, you should visit them and see what they have in their boxes, chests, and files, if they will let you. They may have records of wills and probate proceedings that go back generations. Even if they only have these records for their own parents and/or grandparents, you are still finding some genealogical gold. Bring a scanner with you to capture the images, to make sure they are preserved for posterity. Your relative may have probate records that do not exist anywhere else, thanks to burned courthouses. These rare documents could open up whole new avenues of research for you.
State or Local Archive Buildings
Probate records from colonial times may be found in county courthouses, but are more often found in archive buildings. If you are looking for the probate records for an ancestor who lived in America before the American Revolution, visit or write to the historical society in the city, town, or county in which they lived. Their probate documents may have been preserved and made their way there. You might even be allowed to handle an original document from the 1600s or 1700s with remnants of red wax seals still on them. Even if you don’t get to handle the original, you will still be shown a copy or a microfilmed version of it. Probate records are incredibly valuable genealogical documents. They are well worth searching for on every branch of your family. The more of them you discover, the more you will learn about your family history, and about your ancestors as individual human beings. That is a real treasure in the study of genealogy.
Probate Lawyer Free Consultation
When you need legal help with probate court in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506