Ex Officio Judge Of Probate
The Clerk's most important judicial
responsibility is jurisdiction over the probate of wills and the administration of
decedents' estates. A will is a legal declaration of a person's wishes as to the
disposition of his/her property after their death. No person has a natural, inherent right
to make a will; the right to devise property is granted and regulated by statute. Probate
is the procedure required to prove the validity of a will. When a will is offered for
probate, the Clerk conducts a hearing to establish that the instrument in question was
executed in a manner prescribed by law and constitutes the last will of the deceased.
When someone dies without a will, the Clerk appoints a person
known as the personal representative to be present and administer the decedent's estate.
The personal representative's job is to collect and account for the estate's assets and to
pay debts & taxes. He then distributes the property according to the decedent's will,
if any, or according to the laws of distribution that applies when a person dies without a
valid will. The personal representative must apply to the Clerk for a certificate of
authority, known as "letters of administration." If the Clerk determines that
the applicant's qualifications are legally sufficient, the Clerk issues the letters, which
certify that the personal representative has the authority to receive and administer the
assets that belong to the estate.
The Clerk is responsible for supervising the personal
representative's administration of the estate. He does this primarily by reviewing the
reports that the personal representative is required by law to file while he/she is
administering the estate. These include a preliminary inventory of assets, which the
personal representative files with his initial application for letters; a 90-day
inventory, a complete listing of the estate's assets that is due 90 days after the
representative's appointment; and a detailed financial accounting of the estate--including
all assets, income, disbursements and distributions--which is filed when the
administration of the estate is complete. The Clerk carefully audits these reports for
legal sufficiency and accuracy.
Auditing estate inventories and accounts is a difficult and
extremely important job. In Many Cases, the Clerk is the only person to review the
accounting proposed by the personal representative. The Clerk is in a unique position to
be watchful of the interests of the heirs, devisees and creditors, who are generally not
represented. Although the clerk does not interpret the will ( that is the legal
responsibility of the personal representative ), as a practical matter the Clerk reviews
and approves the personal representative's interpretation when accepting the report on the
distribution of assets.
In connection with approving these reports, the Clerk performs
another important judicial function--he is responsible for setting the personal
representative's commission ( Fee ). The amount of commission is within the Clerk's
discretion, subject to a statutory upper limit that is based on a percentage of estate
receipts and disbursements. The Clerk considers the time, responsibility, difficulty and
skill involved in managing the estate.
The Clerks Jurisdiction
Over Estates
By statute, jurisdiction over
probate is vested in the Superior Court to be exercised by the Clerk of Superior Court as
Ex Officio Judge of Probate. The Clerk acts as a judicial officer of the Superior Court,
not as a separate court, but his jurisdiction is original and exclusive. It is not shared
with a superior court judge, except in the unusual case in which the Clerk is disqualified
to act because of a personal interest in the estate. A Superior Court Judge has
jurisdiction to hear estate and probate matters only on appeal or caveat ( a challenge to
the validity of the will that is transferred to the Superior court by jury ).
The judge is not authorized to retain and dispose of estate
cases that are transferred on a caveat or appealed. When the issues are settled, the Judge
must remand ( send ) the case back to the Clerk, who proceeds with the administration of
the estate.The Clerk's special probate jurisdiction , which is derived from the Office of
Judge of Probate Court, is separate and distinct from his/her general duties and
jurisdiction as Clerk. |
