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Judge Galler: The Mystery of Probate Court

Washington County Judge Greg Gallery explains a few "obscure and antiquated phrases" in the hopes of taking some of the mystery out of the probate court process.

Over the last generation the judiciary has tried to make it easier for people without law degrees to better understand what is happening in court. Sometimes it seems that lawyers and judges speak a language that no one else can understand. Obscure and antiquated words and phrases are bandied about in what many thought was an attempt to confuse everyone else.

Today, most of the legal jargon has been removed from the courts. Probate court, however, remains as the last court where obscure and mysterious terms are still sometimes used.

Just what is probate court?           

Probate court originally referred only to the process of proving in court whether or not a will was valid. Today probate courts deal with all cases involving estates, guardianships, conservatorships and civil commitments.

Once you understand the definitions of the words, it is easy to see that there really is no mystery.

For example, probate court deals with “decedents” (a person who has died). A decedent may have died “testate” (with a will) or “intestate (without a will). We also speak of “fiduciaries” (persons with a special duty of trust toward another), “beneficiaries” (those having an interest in a will) and an “executor” (a male term) or an “executrix” (a female term). 

The terms executor and executrix are now rarely used in Minnesota. They have been replaced by the gender neutral term “personal representative.”

A personal representative is a fiduciary with a legal duty to settle and distribute the estate according to law (and according to the will if there is one). The personal representative needs to do this as expeditiously and efficiently as is consistent with the best interests of the estate and of the beneficiaries of the estate.

To unravel the mystery of “attorney speak,” you might hear this in probate court: “Judge, I represent the decedent’s sole beneficiary, a minor daughter, in this testate estate. The executrix agrees with our plan to establish a fiduciary account to accept the estate’s assets.”   

In real terms this means: “Judge, the will leaves everything to my client, who is a child. The personal representative agrees we should establish a protected account to hold everything for her.”

Why do courts use such cryptic language when more easily understood language is available?

Part of the answer lies in the fact that the older language is more specific and narrowly defined. This allows for greater brevity and precision in dealing with matters that come before the court.

For example, there are a number of different words for people who will receive, or could potentially receive, something from an estate. There can be heirs, devisees, legatees, grantees or other similar terms used.

They differ by name depending on whether they receive real property, personal property or a mix of both. We now use the term “beneficiary” to broadly describe anyone with any interest in an estate.

Hopefully this will help to take some of the mystery out of the probate court process. 

Judge Galler is chambered in Washington County. If you have a general question about the law or courts for Judge Galler, send your question to Stillwater Patch editor Shawn Hogendorf at shawn.hogendorf@patch.com. to learn more about Judge Galler, or listen to a podcast of his columns, visit www.judgegreggaller.com.

Tricia Kalinoff May 17, 2012 at 01:42 PM
Does a lawyer have to be the one who goes before a judge in probate court? Or can a para legal do it?
Patty Busse May 17, 2012 at 01:54 PM
Not sure about that, Tricia, but I'll email Judge Galler and see if he can provide an answer.
Shawn Hogendorf May 17, 2012 at 01:56 PM
Judge Galler is away from his email until May 21, Tricia. This is a good question. I'll try to find you an answer and post it.
Shawn Hogendorf May 21, 2012 at 08:52 PM
Here's Judge Galler's answer to your question, Tricia: "In Minnesota, only attorneys are allowed to represent clients in court. Paralegals are knowledgeable and trained professionals that are able to provide people with a lot of help, but they cannot represent people in court. Paralegals primarily work in a role that assists lawyers with cases. Because of this, when appearing in court, people have just two choices: represent yourself or retain an attorney to represent you. I recommend that people should at least confer with an attorney to learn what the attorney has to offer regarding your case."
Bob Johnson June 15, 2012 at 11:40 AM
Judge Galler maliciously evicted a dying veteran from his home in Landfall. Presiding over the case Galler did not disclose he had an association with the Landfall city attorney Kevin Shoeberg. They both served as trustees on the Stillwater Law Library. A judicial ethics complaint will be filed soon.

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