What Is a Probate Judge and What Do They Do?
Probate Judges Must Decide Contested Estate Issues
A probate judge is a civil court judge and a state judicial official who is in charge of overseeing all aspects of the probate court system. This can include not only the estates of deceased persons but competency issues and adoptions in some jurisdictions as well. Estate matters are the most common cases heard in probate courts, however.
Not all states and counties have these courts, and in some, they're called surrogate's courts. By either name, they cover the same legal issues and the judges assigned to oversee these issues share largely the same roles and responsibilities.
The Judge's Role in Estate Proceedings
A probate judge's role in the administration of an estate can vary based on whether the deceased person left a last will and testament, referred to as dying testate, or if he died intestate, meaning that he did not leave a will.
The judge's exact duties can also vary depending upon whether the personal representative of the estate, the heirs-at-law, and the will's beneficiaries get along and whether a will contest is filed. An heir-at-law is someone who is related closely enough to the decedent that he would have inherited from him by law if the decedent had died intestate.
Uncontested Estates When There's a Will
If the decedent left a last will and testament and everyone involved gets along so there are no major disagreements, the estate is said to be uncontested. The probate judge's role in the administration of the estate is therefore typically minimal. For the most part, he'll just review and sign orders as they're presented to him by an attorney who might have been hired to assist the executor of the estate, or by the executor herself.
These orders are generally necessary to allow the estate to wrap up one aspect of the probate process so it can move onto the next. They include orders to open the estate and to formally appoint the executor to act on behalf of the estate and to authorize the sale of estate assets, if necessary, so the decedent's creditors can be paid. An order is generally required to close the estate as well when the probate process is completed.
Contested Estates With a Will
If the decedent left a will and there's disagreement or acrimony between the executor, the beneficiaries, and/or the heirs-at-law, the probate court judge will be much more involved in the proceedings.
In these situations, the judge might have to address challenges made by the heirs-at-law as to the validity of the will. For example, an adult son who would have been entitled to inherit if his father had died without a will might learn that there is a will and that he's not mentioned in it.
He could file a will contest and the judge would then have to determine if the omission was intentional and the decedent meant to disinherit his son or if there was some other problem with the will's form so it doesn't meet the letter of the law. The son might have an older will or a newer one that does include him. It would fall to the judge to determine which will should be honored.
The judge might also be called upon to settle other disputes between the executor and the beneficiaries. These can range from perceived problems with how the executor is administering the estate—often complaints that she's taking too long—to disagreements among the beneficiaries as to how certain estate assets should be handled. Beneficiaries often protest when assets must be liquidated to pay estate operating expenses and the decedent's debts.
Duties of a Probate Judge in Intestate Estates
The probate judge's first order of business when an estate is intestate is to select a personal representative to administer it. A personal representative serves the same function as the executor of a testate estate, but the appointment is left to the judge because the decedent did not make his wishes known by naming someone in a will.
Probate judges can be confined by legislative statutes and rules in some states when it comes to who they can appoint as personal representative. Often the surviving spouse has the first right to the job, and adult children would be next in line if she doesn't want the responsibility or is incapable of taking it on for some reason.
In some cases, if the heirs-at-law agree on who should serve as personal representative, the probate judge can simply appoint that person. Beyond this point, the probate judge's role in the administration of the estate would most likely be minimal, assuming that the heirs-in-law get along. The probate judge would simply sign orders as the estate progresses much as he would with a testate estate.
Steps of Probate Administration and the Judge's Duties
The probate judge oversees and approves all the steps of probate administration after an executor or personal representative is in place. Typical steps include gathering the decedent's assets, which might involve the executor or personal representative taking actual possession of a tangible piece of property or just identifying and locating 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 an opportunity to make legal claims for the money the decedent owed to them. The executor or personal representative is then charged with determining whether these claims are valid and, if so, paying them from estate funds. This sometimes requires liquidating estate property, and the judge might have to step in if beneficiaries and heirs-at-law protest.
If the executor or personal representative denies a creditor's claim because she doesn't believe that it's valid, the matter will often move into a courtroom in this case as well. The probate judge would have to determine whether this is indeed the case or if the creditor should be paid.
At the end of the probate process, after all claims are paid, the executor or personal representative is responsible for distributing the remaining property to the beneficiaries per the terms of the decedent's will. If he died without a will, his property would go to his heirs-at-law according to state law. Both scenarios typically require the approval of the probate judge and a final, signed order to close the estate.
How Are Probate Judges Paid for This Work?
As with many other types of judgeships, salaries for probate court judges can vary significantly by location. Courts in larger metropolitan areas typically pay more than those in rural, Midwest counties. Salaries are typically set by the counties, not at the state level.
For example, probate court judges in Massachusetts counties average salaries of about $130,000 a year, whereas those serving in Montgomery County, Alabama, were paid a minimum of just more than $52,000 annually in 2015—although the state legislature did subsequently give them some significant raises.
The median salary for all judges and magistrates nationwide is a little over $160,000 as of January 2018. Keep in mind that "median" is not the same as "average." Median means that half of them earned more than this and half earned less.
Required Experience, Education, and Job Opportunities
All judges must typically be graduates of accredited law schools, and many states require that they've spent some time practicing as attorneys as well. Judges are typically appointed by the governor or state legislature.
There is typically one probate court per U.S. county in counties that maintain these courts at all. Some rural counties with very modest populations will divert their probate cases to the state capital or to a larger, nearby county.