What Is Probate and Family Court?

Renee Booker

In most legal systems, the probate court and the family court are separate courts within the judicial system. Within the Massachusetts court system in the United States, however, probate and family court is one court that hears both probate and family law cases. Estates, guardianships, and conservatorships, as well as divorce, custody, and paternity are examples of legal matters that are handled by the probate and family court.

A probate and family court handles legal issues involving divorce and child custody.
A probate and family court handles legal issues involving divorce and child custody.

Issues handled by the probate side of the probate and family court generally center around handling the estate of a decedent or petitions for guardianship or conservatorship. An estate must be opened in the probate and family court when someone dies and leaves assets or debts that must be accounted for and paid. The probate process generally requires that an executor or personal representative be appointed to oversee the estate and inventory all the assets of the estate. Once all the assets are accounted for, claims of the estate must be paid. When the court approves the final accounting submitted by the executor or personal representative, any remaining assets may be passed down to the beneficiaries of the estate.

When a person wants to petition the court to become the guardian or conservator of another person, the petition must be filed in the probate and family court. A guardian or conservator may be appointed for a minor or for an incapacitated adult. While similar in nature, a guardian is someone who has the legal capacity to make day today decisions for the ward — the person who is the subject of the petition — while a conservator has the legal right to make decisions regarding the finances of the ward. In order to become the guardian or conservator of an adult, a determination of incapacity or disability must first be made by the court.

The probate and family court also handles legal issues involving the family, such as divorce, child custody, and paternity. A divorce case must be filed in the county where one of the parties is considered a resident. Child custody is generally addressed at the time of a divorce or paternity petition; however, motions to modify custody may be filed in the court where the original custody determination was made.

A paternity case is filed in order to determine legal paternity of a child born out of wedlock. Although a man may acknowledge that he is the father of a child, simply acknowledging the child does not make the man the legal father of the child. By establishing paternity, a man gains both rights to visitation and/or custody as well as the obligation to support the child.

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