Who needs probate court?

Written by mike broemmel
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Who needs probate court?
(DB King, Everystockphoto.com)

Although most people have heard reference to a probate court, many individuals do not know all of the primary functions of this type of court. The fact is that there are several different reasons why a person may need to use or access the probate court.

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Wills

From the public's perspective, dealing with last wills and testaments is the most common function of a probate court. Indeed, "probating" wills does take up a good part of the docket or schedule of a probate court. People need to use the probate court when it comes to dealing with the last will and testament of a person who has passed away.

The role of the probate court in such a situation is to oversee the process of ensuring that the wishes of the individual who has died are carried out. This includes everything from officially appointing the executor of the estate (the person named in the will to be "in charge" of the estate) to overseeing the sale or distribution of major assets of that estate.

Other Estates

Not everyone dies with a will. Therefore, in some instances when a person dies without a will, her family members need to come before the probate court. If the overall value of a person's estate upon death is over a certain minimum level, the probate court must be involved in dealing with that estate. The dollar level at which the probate court must intervene by law differs from state to state.

When a person dies without a will and does have over the minimum level of property, typically a family member will file a petition with the probate court to have an estate officially established and to have an administrator appointed to oversee that estate. The deceased individual's assets will be distributed, and all other related matters dealt with, through this estate---under the oversight of the probate court.

Conservatorships

Another situation in which the probate court is needed is when a conservatorship must be established. A conservatorship is necessary when an individual is unable to take care of his finances in an appropriate manner. In such a situation the court will appoint a conservator to manage the financial affairs of the person who needs this assistance.

Beyond appointing the conservator in the first instance, the probate court will also maintain oversight over the case and the conservatorship as long as it is in place.

Guardianships

Probate courts are needed when a guardianship needs to be put into place. A guardianship is necessary when an individual is unable to care for herself personally and is not able to tend to her day-to-day affairs. For example, an individual who needs a guardianship is physically or mentally incapacitated.

As with conservatorships, the probate court will not only appoint a guardian but will maintain ongoing oversight relating to the case as long as the guardianship is in effect.

Adoptions

People need to access the probate court in many states when seeking to adopt a child. In these states, the probate court has authority over adoption cases. However, in other states, adoptions actually are undertaken in the family court.

In those states that use probate courts for adoption matters, it is the probate judge that possesses the power to approve or deny an adoption.

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