The mystery of probate court

By Judge GREG GALLER – Gazette Columnist

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

Today, most legal jargon has been removed from the courts. Probate court, however, remains the last court where obscure and mysterious terms are sometimes still used. Just what is probate court?

Probate court originally referred only to the process of proving in court whether a person’s 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," or a person who has died. A decedent may have died "testate," or with a will, or "intestate," without a will. We also speak of "fiduciaries," or 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 They have been replaced by the gender neutral term "personal representative."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 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 Greg Galler is chambered in Washington County. If you have a general question about the law or courts for Judge Galler, send your question to the editor of this newspaper. Learn more about Judge Galler, or listen to a podcast of his columns at