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What Is Surrogate Court?

The surrogate court is overseen by a judge who may be known as a surrogate.
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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 20 October 2014
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A surrogate court is a court which oversees legal proceedings related to the settling of an estate, and may also be known as a probate court. Some surrogate courts also handle matters such as adoptions, guardianship, conservatorships, and related matters, although these may be handled by a separate family court. The matters dealt with in a surrogate court vary depending on the policies of the court system in the area where the court is located.

In small communities, all legal matters can generally be handled in the same court. However, in big communities and cities, this becomes impractical, because the court quickly becomes jammed with an excess of cases and it cannot process them in a timely manner. To address this problem, many regional court systems break themselves up into several different types of courts so that legal matters can be split up and handled as quickly as possible.

The surrogate court is overseen by a judge who may be known as a surrogate. She or he handles probate for estates both with and without wills, making sure that the property of the decedent is distributed in accordance with the decedent's wishes, the law, and common sense. Sometimes this process is easy, as when an executor is named and the will is updated and clear, and in other cases, probate can drag on as a result of combative family members and unclear clauses in the will.

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Essentially, the judge in the surrogate court acts in the best interests of a party who cannot attend court, because he or she is dead or incapable by law. This is why surrogate courts often handle family law matters such as adoption, guardianship for people who are deemed mentally incapable, and conservatorships. The surrogate takes care to ensure that the law is followed and that a person who may be vulnerable is served fairly and well by the legal system.

Decisions made in a surrogate court are just as legally binding as those made in a regular court, and the officers of the court are held to the same standards as conventional courts. People may opt to represent themselves in court or to hire a lawyer, and the court may appoint a lawyer to act on behalf of someone who would otherwise lack representation. For example, a ward of the state will be given a lawyer who is directed to protect the interests of the ward in court and to provide the ward with legal advice and assistance.

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anon355945
Post 8

What part does the surrogate court play in a case of a mother with two kids whose husband passed away and left her with two mortgages and no life insurance? One of the houses now is in foreclosure proceedings by the bank. What help can the surrogate court render for this family's survival from the mortgage company, since the woman cannot afford payment?

mizzmax
Post 7

My husband and I had to move a will to surrogate court because his brother does not agree with the will. They are co-executors and are to split everything 50/50. We tried not to work with the brother, but to no avail. It didn't work out. The attorneys handling the will said that if both parties do not agree, then the surrogate will have to make the final decision. My husband and I are pleased with that ruling. Just waiting to obtain an attorney and start the proceedings.

sweetPeas
Post 6

I think that surrogate courts handle cases where a person is unable to speak for themselves in court because they are deceased, mentally incapable of expressing their wishes, and in child adoption cases. In the case of adoption, I'm sure that family law courts are involved with the surrogate courts.

A minor who is estranged from his/her parents or they are deceased could become a ward of the court. This minor could appear in surrogate court. He/she may be capable of speaking his wishes in court, but needs the representation of an attorney.

I would like to know the history of how the surrogate court became a part of our legal system. Anyone know?

Bertie68
Post 5

I don't think that I have ever heard of the term "surrogate court." But I have always lived in a large city where there are different courts for different cases.

I can see how it's used in situations where someone dies and doesn't have a will, or an executor, and the will might have been self-written by the deceased and is a bit confusing.

I can see how the surrogate court could get really entangled in a probate case, where the assets might not be too high. But perhaps the will was done carelessly. Trying to be fair to the beneficiaries and also consider the law, might be very frustrating and time consuming. It's a good idea to consult a lawyer when preparing estate documents. I can see, though, how some people in small towns don't have access to lawyers or can't afford them.

It's good to know that in surrogate courts, the same laws and procedures are followed as in standard courts.

burcinc
Post 4

I thought that surrogate courts only handle cases where there is no will. I guess it depends on the state, because I know that's how it is here in New York.

If every state and even the counties in each state have surrogate courts with different rules, doesn't this make it all very confusing?

I understand that surrogate courts serve a good purpose, of making other court's job easier. But I wish that all surrogate courts were run according to the same rules and regulations. I can't even imagine what a lawyer must go through when they work with different states and surrogate courts.

ddljohn
Post 3

@turquoise-- That's a good question. I think the example you mentioned is a bit complicated. I'm not too knowledgeable about legal matters but I think that both a surrogate court and a family court would be involved in that situation.

As far as I know, a surrogate court handles cases where guardians pass away but not relating to custody necessarily. It usually oversees financial matters and property. It will put into effect wills or resolve financial matters for the children until they are 18 years old.

Custody cases, if I'm not wrong, will still be seen by the family court in this situation. But I imagine that two different cases would be started in both a surrogate court and a family court.

turquoise
Post 2

If a child's guardians passes away, does the surrogate court decide who the child's new guardians will be and how the child will be cared for until he or she becomes an adult?

I read about an incident where the parents of three children passed away in a car accident in which the other driver was proven to be responsible for. The court decided that the driver responsible for the accident would pay for the care of the children until the youngest one became an adult. I'm just wondering if a case like this is seen in a regular criminal court, or a surrogate court?

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