Court Records Blog

All state court systems have procedures for handling wills and other estate matters, including estate administration, guardianships, conservatorships, and trusts. When someone dies with a will, the will must be proved to be valid, and the instructions in the will carried out. This process is called probate, so most courts that handle estate matters have come to be called “probate” courts.

Some court systems have separate probate courts; examples can be found in Connecticut,  Georgia, and Texas.  More often, a state’s main trial court will have a probate division; examples can be found in California Superior Court, Illinois Circuit Courts, and Kansas District Courts.

Instead of probate courts or divisions, New York and New Jersey have Surrogate’s Courts, also known as Surrogate’s Offices in some New Jersey counties. According to the dictionary, a surrogate is a substitute, someone who acts in place of another. The most common usage of the term is surrogate mother, who bears a child that will be raised by someone else. But it can also be used to describe anyone who substitutes for someone else, such as a surrogate speaker for a busy politician or a health care surrogate who makes decisions for someone who has become incapacitated.

It can also describe a judicial officer. In the New York and New Jersey court systems, a Surrogate acts not in place of another judge, but in place of an official from the pages of history.

The first Surrogates appeared hundreds of years ago in Great Britain, where the Church of England was responsible for probating wills and bishops would appoint Surrogates to help with their workload. The position of Surrogate still exists in the Church of England. When the British colonies were established in America, colonial governors were responsible for probating wills, so they continued the practice of appointing Surrogates - due more to the difficulty of travel in the early colonies than to workload. Only New York, New Jersey, and Canada maintained the terminology in their court systems.

In both New York and New Jersey, there is an elected Surrogate in every county. As in probate courts or probate divisions in other states, the Surrogate administers wills, estates, guardianships, and trusts. Many Surrogate’s offices also handle adoptions and incompetency hearings.

In New York, the Surrogate’s Court has jurisdiction over probate, estate administration (distribution of the assets of someone who died without a will), trusts that continue or are created after death, guardianship of minors or mental incompetents, and adoptions.

In New Jersey, the Surrogate is both judge and clerk of a county’s Surrogate Court. It’s in that capacity that the Surrogate probates uncontested wills, and appoints administrators of estates with no will where there is no objection or controversy. But in New Jersey, the Surrogate is also a clerk of the Superior Court, Chancery Division, Probate Part. In that capacity the Surrogate reviews and schedules will contests and other issues that require a decision by the court. In addition to contested wills, this can include mental incompetency hearing, appointment of guardians, and adoptions. In any contested matter, the Surrogate acts as the clerk; the case is decided by a judge of Superior Court, Chancery Division, Probate Part.

In New York and New Jersey, a Surrogate is an elected judicial officer with defined responsibilities and authority over a specialized area of the law – not a substitute.

Judicial foreclosure exists in nearly every state in the United States. Generally, a lender initiates a foreclosure action when the property owner/borrower has failed to make mortgage payments. In a judicial foreclosure, the lender must go through the court system, filing a complaint and serving the borrower. In most states, the court will then either find for the borrower or for the lender. If the court finds that the borrower has indeed defaulted on his or her loan a judgement will be entered for the lender. The lender can then hold a sheriff’s sale of the property in order to pay off the debt. Many states also offer a “redemption period,” or a certain amount of time in which the borrower may buy back the property.

As most people know, the court process can be long and costly. Although many states also offer a non-judicial foreclosure option, as the recession has continued and more and more people are unable to make mortgage payments, banks and courts have become overwhelmed by the foreclosure process. In response to this unprecedented situation, many states have begun to offer foreclosure mediation as an alternative to traditional foreclosures.

Although each state that offers a mediation option might do it a bit differently, in general foreclosure mediation involves the borrower, the lender and a neutral third party mediator. The mediator’s role is to listen to each party and assist them in coming to their own resolution. Generally the borrower must have at least some ability to make payments in order to reach an agreement with the lender. Outcomes of mediation can include 1) reinstatement of the loan (where the borrower agrees to pay enough to bring the loan up to speed), 2) a specific repayment plan that involves making regular mortgage payments and an additional amount each month to pay off the amount in default, 3) a loan modification or 4) time to refinance, among other options.

Recently, there has been some question as to whether foreclosure mediation actually works to reduce judicial caseloads and prevent foreclosures. States such as Florida have ordered reviews of their foreclosure mediation programs, however, proponents argue that the programs can be fixed by giving homeowners more power and forcing lenders to meet more obligations before declaring that the mediation is a failure.

Regardless of the future of foreclosure mediation programs, if you are facing foreclosure and your state offers the option, mediation probably won’t hurt. It’s worth coming together and meeting with lenders to try to reach an agreement and avoid foreclosure. Court Reference can help you discover whether your state offers a foreclosure mediation program; it provides links to many different foreclosure mediation services.

For anyone facing involvement with the legal system for the first time, thoughts may immediately turn to lawyers. We’ve already addressed such questions as “Do I need a lawyer?” and “Can I get a lawyer for free?” and we covered lawyer referral services as well.

For those who don’t want to “go it alone” but don’t qualify for free services and can’t afford complete representation, there is another option. Limited-scope representation – also known as “unbundling” or “limited-assistance representation” – is growing in popularity. You and your lawyer agree to split up the tasks involved in the case, and you only pay the lawyer for the tasks he or she takes on. You do the rest yourself. By not paying for services you can handle on your own, you get the most effective legal help you can afford.

Common tasks the lawyer handles are advice about the case, court appearances for the more complicated issues, document and evidence preparation, coaching, discovery, negotiation, and legal research. It really depends on which tasks you feel comfortable doing on your own, and which tasks you’d rather leave to your lawyer.

Not all lawyers are interested in such an arrangement, and it’s not common everywhere. But 39 states have adopted some form paragraph (c) of the American Bar Association’s Model Rules of Professional Conduct, Rule 1.02, which allows limited-scope representation as long as the limitation is reasonable and the client gives informed consent.

Some court systems have lists of lawyers who will take limited-scope cases, or who have been qualified to handle them. Examples may be found in Mecklenburg County, North Carolina and Johnson County, Kansas.

Other court systems and legal services organizations provide information about how the process works, such as the California courts, Kansas Legal Services, Douglas County District Court in Kansas, Massachusetts Probate and Family Court, Massachusetts Housing Court, Boston Municipal Court, and court systems in Missouri, Montana, and Nebraska.

In New Hampshire and Massachusetts, Community Legal Services uses unbundled services to lower costs for its clients.

You can find all of these links in the Legal Aid and Lawyer Referral category of CourtReference’s state court guides, with more to come as the idea catches on.