Probate Courts

Resource Guide

While probate courts primarily handle the estates of deceased people, they also play an important role in protecting the rights of people with special needs- the mentally ill, orphaned children, the elderly, and developmentally disabled people. While the name of probate courts vary from state to state, all probate courts encounter unique issues and have specialized practices and proceedings that allow them to respond appropriately, including information relating to jurisdiction, administration, practices, and various procedures implemented.

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.


Featured Links

Van Duizend, Richard and Brenda Uekert National Probate Court Standards. (2013).

The revised standards replace the 1993 standards and reflect 20 years of evolution of probate courts. While they are aspirational in nature, the goals should be obtainable by probate courts that are provided with reasonable levels of resources. The Standards focus on probate court but would apply to any judge responsible for a probate matter.

Steelman, David C. and Alicia K. Davis. Probate DCM to Protect Vulnerable Adults. (2012). Future Trends in State Courts.

Some probate courts are now considering time standards and new case management strategies and tools to handle expanding caseloads, including differentiated case management (DCM) both before and after fiduciary appointment.

Steelman, David C., Alicia K. Davis, Daniel J. Hall. Improving Protective Probate Practices: An Assessment of Guardianship and Conservatorship Procedures in the Probate and Mental Health Department of the Maricopa County Superior Court. (2011). National Center for State Courts

This report provides an in-depth study of adult guardianship and conservatorship cases handled by the Maricopa Probate Court.   The report compares monitoring practices to National Probate Standards, assesses the Probate Department’s new programs and procedures, surveys promising practices from other jurisdictions, and recommends promising practices which would be suitable for Maricopa’s Probate Department.

Brenda K. Uekert and Richard Van Duizend. Adult Guardianships: A "Best Guess" National Estimate and the Momentum for Reform. (2011). National Center for State Courts, Future Trends in State Courts 2011.

A projection of active pending adult-guardianship cases nationwide demonstrates the need for improved data collection. Retrospectively, 2010 may be remembered as a pivotal year in the call for guardianship reform at both federal and state levels.

Case Processing Time Standards. National Center for State Courts.

This database compiles state-by-state information about Case Processing Time Standards (CPTS) including Probate and how states monitor them.

Probate Court Technology Vendors. National Center for State Courts.

Probate Court Technology Vendors from the Court Technology Vendor List.

General

Uekert, Brenda and Richard Schauffler. The Need for Improved Guardianship Data. (March 2010). Judicature, Vol. 93. no. 5. This article reviews the current status of the state courts’ ability to report adult guardianship data.  Without this data courts will be unable to monitor individual cases or forecast trends. 
Ad hoc Committee on Probate Law and Procedure. (February 2009). Final Report to the Utah Judicial Council This report offers extensive recommendations in the area of guardianship and conservatorship including changes to statutes and rules, improved forms and education, and an overall change in thinking about the use of guardianships and conservatorships.
Shirley Bondon. The Future of Court-Oriented Decision-Making Assistance: Perspectives from the Washington State Office of Public Guardianship. (2009). National Center for State Courts, Future Trends in State Courts 2009.

Increases in three populations—the elderly, persons with disabilities, and the homeless—will require courts to rethink and revise approaches to decision-making assistance.

Standards of Practice. (2007). State College, PA: National Guardianship Association Ten Standards of Practice for guardianship relationships.  3rd edition.
Teaster, Pamela B., Ph.D., Erica F. Wood, Winsor C. Schmidt, and Susan A. Lawrence. Public Guardianship After 25 Years: In the Best Interest of Incapacitated People?. (2007). American Bar Association Commission on Law and Aging This Executive Summary describes the methods used in this 25 year study of public guardianship, discusses models of public guardianship, provides brief analysis of applicable statutes, and provides conclusions and recommendations regarding public guardianship programs.
Hon. Steve M. King. Guardianship Monitoring: A Demographic Imperative. (2007). National Center for State Courts, Future Trends in State Courts 2007.

This report discusses monitoring the elderly and how this is becoming an increasingly important issue as the baby boomer generation ages. Milestones and information about good practices of guardianship monitoring are also shown.

Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. (August 2007). National Conference of Commissioners on Uniform State Laws This uniform act, recently revised and pending adoption by the states, addresses jurisdictional issues for adult guardianship matters. A synopsis of the act is also available.
Teaster, Pamela et al. Wards of the State. (2005). Chicago: ABA Commission on Law and Aging and the Graduate Center for Gerontology at the University of Kentucky A National Study of Public Guardianship
Probate Court Volunteer Visitors Program. (May 2005). National Center for State Courts This implementation handbook was prepared for the Administrative Office of the Courts of Georgia.  The Volunteer Visitor Programs are Probate Court-sponsored efforts to enhance the court's capacity to monitor the care, condition, and assets of incapacitated adults and to assist guardians in fulfilling their responsibilities.
National Survey of Probate Jurisdiction. (May 2003). National College of Probate Judges.

This table is a result of a survey conducted by the National College of Probate Judges. It shows where probate cases (e.g., decadent's estates, conservatorships, guardianships, mental health commitments, adoptions) are heard in the state courts.

Wood, Erica F. Guardian Accountability and Monitoring. (February 2003). American Bar Association Commission on Law and Aging
Vanderheiden, Richard. How to Spot a Guardianship or Conservatorship Going Bad; Effective Damage Control and Useful Remedies. (November 2002). National College of Probate Judges 2002 Fall Conference.

This is a presentation introduces fifteen "red flags" of fiduciary abuse, exploitation, neglect, and misappropriation and demonstrates the ways in which a court can help prevent financial abuse and control losses in guardianship or conservatorship cases.

Ferchill, Honorable Patrick. A Systems Approach to Guardianship Management. (November 2002). National College of Probate Judges 2002 Fall Conference.

Judge Ferchill from Fort Worth, Texas has created a guardianship department that uses a systems management approach to meet the mandates for guardianship in the probate court.

Fred, Morris A. Illinois Guardianship Reform Project. (2001). Chicago: Equip for Equality Final Report.  Contains task force findings and recommendations on determinations, monitoring, training, public education, and other issues.
Susan J. Butterwick et al. Evaluating Mediation as a Means of Resolving Guardianship Cases. (2001). Ann Arbor, MI: Center for Social Gerontology
Hafemeister, Thomas and Hillery Efkeman. National Probate Court Standards. (June 1993). NCSC and the National College of Probate Judges.

Probate practice, jurisdiction, and the structure of courts exercising probate jurisdiction  vary greatly from state to state. There is often a dramatic difference in the terminology used in probate courts and the type of cases included within the term, probate. Consequently, there is a limited degree of consistency in the practice and procedures used to resolve probate proceedings.

Good Guardianship. Chicago: ABA Commission on Law and Aging Promising Practice Ideas on Court Links for Agencies on Aging, Adult Protective Services, and Long-Term Care Ombudsman: State Court Partnerships with the Aging Network. Brief brochure identifies issues, recommends solutions, and provides "Twelve Promising Practice Examples" from the courts.
Uniform Probate Code Locator. Cornell University Law School, Legal Information Institute Information on the Uniform Probate Code and the states that have adopted it.

Medical Decision Making

Giving Someone a Power of Attorney For Your Health Care. (2011). The Commission on Law and Aging, American Bar Association The form in this guide is a simple version of a Health Care Advance Directive.
Wood, Erica et al. Making Medical Decisions for Someone Else: A Maryland Handbook. (2006). Chicago: ABA Commission on Law and Aging, and Maryland Office of the Attorney General
Consumer`s Tool Kit for Health Care Advance Planning. (2005). Chicago: ABA Commission on Law and Aging This second edition of the ABA's tool kit consists of a user-friendly guide to health care advance directives, including self-help worksheets, suggestions and resources.
Silberman, Susan L. 2003 Minnesota Advance Directives Survey. (2003). Washington, DC: AARP Researchers surveyed Minnesota residents age 18 and over to gauge their familiarity with advance health care directives.
Hafemeister, Thomas and Paula Hannaford. Resolving Disputes over Life Sustaining Treatment. (1996). NCSC with the Greenwall Coordinating Council.

A Health Care Provider`s Guide.  Despite widespread agreement on the principles that should govern decisions about life-sustaining medical treatment, disputes about forgoing treatment continue to erupt within health care organizations.

Organizations

ABA Commission on Law and Aging. This site links to ABA publications and information for those in the probate and aging field, as well as for the general public. The Commission also provides grants to help fund access to justice for the elderly; policy ; and links to legal help, commissions,  in the states for the general public.

Probate Judges

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings. (2006). Chicago: ABA Commission on Law and Aging, American Psychological Association, National College of Probate Judges This book provides judges with a framework by which they can make better decisions in determining capacity. The steps recommended are: (1) screen case; (2) gather information; (3) conduct hearing; (4) make determination; (5) ensure oversight. Model orders and reports are included. The National College of Probate Judges calls this a "ground-breaking work [that] provides welcome tools for judges, attorneys, clinicians, investigators, guardians ad litem, evaluators and scholars concerned with capacity issues facing older adults."
Belskis, Honorable Larry. Ten Tips to make probate judging easier and more efficient. (Fall 2002). National College of Probate Judges 2002 Fall Conference.

Judge Larry Belskis presents some helpful ideas from his experience as a probate judge.

Hannaford, Paula and Ingo Keilitz. Final Report of the NCPJ Advisory Committee on Interstate Guardianship. (October 1998). NCSC for the National College of Probate Judges

In the absence of any widely accepted model of interstate communication for probate courts, the NCPJ initiated a research project with the National Center for State Courts (NCSC) to study the incidence of interstate guardianships and to explore avenues for facilitating interstate communication and cooperation among probate courts.

Steelman, David. Managing Probate Workload and Dockets. (March 1992). Northeastern Regional Officer.

This paper suggests some of the ways to improve the management of judges workload and dockets without expecting additional support staff.