The Disappearing Probate Court

by William Raftery

Summer 2019 | Volume 103 Number 2

In 1967, Maine voters amended the state constitution to authorize the elimination of the state’s county-controlled, county-operated, county-funded Probate Courts.[1] In 2019, the Maine legislature debated a “concept draft” enabling legislation to finally act on the amendment (HP 478) and pull the Probate Courts under one of two other courts (Superior or District). If Maine follows through, it will join most other states that have by now abandoned their probate courts as separate tribunals, adding another nail to the coffin of nearly 800 years of probate court organization and management.

American probate courts trace their origins to two separate court organizational structures that came out of the Norman Invasion in 1066. The Ecclesiastical or Bishop’s Court was devised to address the spiritual needs of the deceased, specifically the saying of Masses for the dead. In order to effectuate payment for services, the bishop or another religious official (called an “ordinary”) in the area was given control over the goods of the deceased; this authority was expanded in 1285 to include settlement of all debts of the deceased and, in 1357, to include disbursement of goods to close relations. These Ecclesiastical Courts also had jurisdiction over both civil and criminal matters relating to local clergy as well as all matters related to matrimony. It was not necessary for the judges of these courts to be learned in the law, though each ecclesiastical judge could appoint a deputy or surrogate.[2]

The second court structure began with the secular Common Law Courts, which is where creditors would sue the executor of the estate, and later the Chancery Courts. For many years, the secular courts had to await a decision by the Ecclesiastical or Bishop’s Court to adjudicate anything relating to the will. After the Reformation, the religious courts’ authority diminished in favor of the Court of Chancery, which had more flexible procedures.[3]

When the English colonies began to develop in North America, each created a Probate Court or an Orphans’ Court to handle the distribution of estates. In Massachusetts and other colonies, the governor, rather than a religious official, was granted the authority to appoint a surrogate to execute a will. This did not, however, negate the often-overlapping jurisdiction among the Common Law, Chancery, and Probate courts and some state legislatures.[4] The overlap of authority was later compounded when these courts were granted lesser civil and criminal jurisdiction.[5]

Efforts to merge law and equity jurisdiction into a single court emerged in the last century, and many states moved to eliminate Probate Courts. For example, in the 1970s, Virginia began the process of merging all the older courts into what would become the District Court system. Upon the recommendation of a commission created by the Commonwealth’s General Assembly to direct a reorganization of Virginia’s courts, the state merged the old Chancery Court, which had exclusive probate jurisdiction by that point, into the Circuit Court. The report recommended, “There should be no specialized courts, but specialized judges may be designated by the chief judge of the division.”[6]

Similar efforts have been made to consolidate courts nationwide; as of 2019, most states have eliminated their separate and distinct probate courts. In the states that still have such courts, the courts have limited authority in the area of guardianship, or that authority is concurrent with some other court. For example, the Maryland Orphans’ Court has concurrent jurisdiction with the Circuit Court in the area of guardianship only if the judge of the Orphans’ Court is an attorney.[7]

Despite the mergers, many people still use old nomenclature. When it revised its judiciary article in 1968, Pennsylvania combined its probate court (Orphans Court) with its Court of Common Pleas, but the statutes still use old language: Counties still have judges assigned to the “Orphans Court.”[8] In 2011, New Hampshire merged all its existing lower courts (District Court, Family Court, and the separate and distinct Probate Court) into a new lower court called the Circuit Court.[9] Thus, as of 2011, the state no longer has a Probate Court; instead, it has a Circuit Court, Probate Division. Vermont made a similar move in 2010.[10] Of course, in common parlance in most places, people still refer to “Probate Court.”

There are, as always, a few states bucking the trend: Probate courts are still going strong and have even broader authority, such as criminal and civil jurisdiction, in Indiana — where the St. Joseph County Probate Court has “original and concurrent jurisdiction in all civil cases and in all criminal cases”[11] — and in Georgia, where Probate Courts have jurisdiction over everything from wills and guardianships to misdemeanors and violations of the Georgia Boat Safety Act.[12]

Footnotes: 

[1] Probate courts in Maine are authorized by Article VI, Section 6 of the state constitution. Me. Const. art. VI, § 6. The 1967 Resolve provides that Section 6 is repealed, but the repeal “shall become effective at such time as the Legislature by proper enactment shall establish a different Probate Court system with full-time judges.” Resolves 1967, ch. 77.

[2] See Eugene M. Haertle, The History of the Probate Court, 45 Marquette L. Rev. 546, 548–49 (1962).

[3] Id. at 550.

[4] For an expansive review of how each colony and early state structured these courts, see Roscoe Pound, Organization of Courts 78–79 (1940).

[5] Id. at 137.

[6] See Va. Court Sys. Study Comm’n, Report of the Court System Study Commission to the Governor and the General Assembly of Virginia 1 (1971), available at http://cdml6064.contentdm.oclc.org/cdm/ref/collection/p266901coll6/id/1359.

[7] Md. Code Ann., Est. & Trusts § 13-105(a), (c)(1), (c)(2) (2017).

[8] See, e.g., 20 Pa. Cons. Stat. § 701 (on “Orphans’ Court Divisions”).

[9] N.H. Rev. Stat. Ann. § 490-F3 (LI) (“The circuit court shall consist of 3 divisions: a probate division . . . .”).

[10] 4 V.S.A. § 30(a)(1)(E) (“The Superior Court shall have . . . A Probate Division . . . .”).

[11] Ind. Code § 33-31-1-9 (2018).

[12] Ga. Code Ann. §§ 15-9-30, 15-9-30.1–30.9 (2017).

About William Raftery

Bill Raftery is a senior knowledge and information services analyst with the National Center for States Courts in Williamsburg, Va. His current work includes research on legislative-judicial relations, judicial selection, judicial conduct, and court security. He is the editor of Gavel to Gavel, a weekly review of legislation in all 50 states affecting the courts.