Sometimes even the best estate planning can’t save you from probate, a court-directed process of transferring assets, money or property to a decedent’s beneficiaries. The state you're in will have either a separate probate court or a special branch of the state court to handle probate matters. Both types of courts receive their jurisdiction, or power, from state statutes, which means that probate functions vary in each state. While all probate courts hold power to validate wills and administer a decedent’s estate, some also handle other family matters, such as adoptions and child emancipation proceedings.
Trusts and Estates
If you're an heir to someone who died and left assets in a trust or estate, you will need a probate court’s permission for those assets to pass to you. The courts determine if a will is valid, if title to any real property held by the estate is clear and whether the executor or administrator, who pays the estate’s debts and distributes the assets, is doing so in accordance with the will’s provisions or state law. This validation process sometimes requires a probate court to hold hearings where witnesses to a will must give testimony.
In some states, probate courts make decisions that alter the rights of parents and decide custody for children. Connecticut’s probate judges, for example, can remove minors from abusive homes. In Vermont, children under 18 can petition the court to emancipate them from their parents or guardians. Additionally, probate courts in both Vermont and Massachusetts sometimes must decide whether to allow adoptions by individuals who cannot obtain parental consent or who have criminal backgrounds.
When it comes to protecting incapacitated individuals, probate courts typically have broad powers. Because mental and physical disabilities can impair an individual’s ability to make decisions, probate judges appoint guardians to manage the individual’s affairs until 18 years of age, for minors, or lifetime, for adults. That protection also extends to the individual’s personal and real property. After the required probate hearings, a judge might restrict a guardian’s control over an individual’s assets, such as ordering the guardian to set up a separate bank account for the individual’s money and seek the court’s permission before making withdrawals.
Judicial hospitalization matters often require probate courts to take a more proactive stance, forcing a mentally disabled person to be hospitalized against his will. Probate judges usually expedite these sensitive cases with back-to-back hearings in which witnesses on both sides argue for or against involuntary hospitalization. If an individual is committed, the court’s job is still not done, as it must monitor the individual’s progress through annual hearings to determine whether the hospitalization should continue.