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 cases presented in the probate court system. These cases can include not only the estates of deceased persons, but competency and guardianship 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 they're called surrogate's courts in some jurisdictions. They cover the same legal issues by either name, and the judges assigned to oversee these issues share largely the same roles and responsibilities.
A 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, if they died intestate—meaning that they didn't leave a will—and the size of the estate.
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.
An heir-at-law is someone who is closely related enough to the decedent that they would have inherited by law if the decedent had died intestate, without a will.
Their Role in Informal Probates
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 $166,250 or less in California, provided that they don't include real property. Barring complications, survivors don't have to appear in court to transfer these estates to beneficiaries or heirs.
Uncontested Estates When There's a Will
An estate is said to be uncontested when the decedent leaves a last will and testament and everyone involved gets along 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 executor, or by an attorney who might have been hired to assist the executor.
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.
Contested Estates With a Will
The probate court judge will become much more involved in the proceedings if the decedent left a will and there's any disagreement or acrimony between the executor, the beneficiaries, and/or heirs-at-law. The judge might have to address challenges made by the heirs-at-law as to the validity of the will.
For example, perhaps 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.
The judge would ascertain if there was some other problem with the will's form so it doesn't meet the letter 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 executor and the beneficiaries. These can range from perceived problems with how the executor 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.
Beneficiaries often attempt to object 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 manage it through the probate process because there's no willing naming an executor. A personal representative serves the same function as the executor when there is a will, but the appointment is left to the judge because the decedent didn't make their wishes known 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. 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.
Steps of Probate Administration
The probate judge oversees and approves all the steps of probate administration after an executor or personal representative is in place.
A typical step involves gathering the decedent's assets. This 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 a period of time to make legal claims for the money the decedent owed to them. State law determines exactly how long they have. The executor or 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 executor or 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.
The executor or 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.
How Much Are Probate Judges Paid?
Salaries for probate court judges can vary significantly by location, just as with many other types of judgeships. Courts in larger metropolitan areas typically pay more than those in rural counties. Salaries are typically set by the counties, not at the state level.
The median salary for all judges and magistrates nationwide was $136,910 in 2019. 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 and Education
All judges must typically be graduates of accredited law schools, and many states require that they've passed their state's bar exams and spent some time practicing as attorneys as well. Judges are typically appointed by the governor or by the state legislature.
There's usually 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.
California Courts. "Simplified Procedures to Transfer an Estate." Accessed Sept. 19, 2020.
HG.org Legal Resources. "Grounds and Procedures for Contesting a Will." Accessed Sept. 19, 2020.
HG.org Legal Resources. "Probate - Probate Overview." Accessed Sept. 19, 2020.
U.S. Bureau of Labor Statistics. "Judges and Hearing Officers." Accessed Sept. 19, 2020.