Probate Equity Shortcomings

The perplexing shortcomings of probate equity court

We often speak of how equity probate court proceedings are so difficult to understand and so confounding to the layman and even sometimes to seasoned attorneys.

It might be worthwhile to consider how the equity court system in the United States differs from what so many of us would imagine. Since most Americans’ encounter with any type of court is usually for something extremely minor like a traffic violation which has little or no significant impact on their lives, the intricacies of these equity course which only became courts of law after 1939 can be maddening.

Four elements constitute civil and criminal courts, namely:

  • Trier of fact (usually a jury).
  • Trier of law (the judge).
  • Prosecution (or Plaintiff in a civil case).
  • Defendant

This arrangement is intended to allow balance for all parties involved in a matter. Each one gets to play a role and each one, at least in theory, has input into the evidence and deliberations that ultimately go into a final decision or ruling. As an example, someone accused of theft is identified by law enforcement, detained or arrested and charges are brought against that person. He is presumed innocent till proven guilty and maintains all of his rights until a determination of his innocence or guilt can be reached by the legal process. Whether the charges are instituted by a grand jury or state’s attorney or any other mechanism, there is a formal process including the mandatory recitation of Miranda rights to protect the accused. At some point a decision is made as to whether to allow the accused back into society via a bail mechanism or whether to incarcerate the individual who might represent a threat to himself or society.

The facts of the case as seen by the government are then presented and argued in front of a trier of fact which in civil and criminal matters is almost always a jury of our peers. After deliberations the jury reports to a trier of law, the judge, their findings and recommendations. The judge then rules and an appropriate correctional action is determined and executed.

In this process the rights of the accused are preserved and the responsibility of the government for the safety of society is maintained. There are checks and balances along the way and their multiple eyes on the process at every step. If a decision is reached at any step of the way that is inappropriate or questionable, appeals to higher courts are available that can overturn or modify a decision that was based on inappropriate application of law, technical violations of the law or faulty evidence.

Rulings in criminal matters often result in incarceration which is typically not lifelong but rather time-limited to allow for rehabilitation and reentry into society. Civil rulings are generally resolved by the imposition of money fines.

Equity courts do not even resemble this process.

In the first place they do not deal with crimes, or at least they’re not supposed to. Probate courts were created to deal with the distribution of assets left over after a person’s death. In a broad sense, they cannot deal with the living individual unless that living individual is declared dead in the law. This is what guardianship does.

In truth probate equity courts are administrative tribunals with limited authority. The reason their authority is limited is because they function outside the normal parameters of our legal system. These are hybrid tribunals that function on the basis of equity rather than law. The most obvious difference between equity and other courts is that

“In a court of law, a case is heard by a jury and the judge, while in equity, only the judge settles a case”.

In the absence of a jury- juries are almost never seated in equity cases, the judges prohibit them– the judge assumes the role of trier of fact as well as trier of law. Even worse and even more perplexing is that he is allowed to act as a prosecutor of sorts imposing rulings that can often be life altering not only for the potential ward but for their downstream descendants as well.

As is obvious three of the four self-regulating legs of our legal system as we usually understand it are missing from the probate equity system. Adding insult to injury the judge who has ultimate latitude to do as he pleases in his court without monitoring or supervision or regulation, the court recruits the services of favored court-appointed minions to execute the will of the court. He appoints Court examiners with which he is familiar and uses repeatedly. He appoints guardians with which he has long-standing relationships and they appoint attorneys to represent themselves who have long-standing relationships with the judge as well. This is why the probate insiders often refer to themselves as a “tightknit fraternal incestuous group”.

As opposed to the preservation of an accused person’s rights until adjudicated guilty, the allegedly incapacitated person immediately loses that assumption of innocence or capacity. They lose the ability to choose their representation and are forced to rely on the court to appoint yet another court insider as their court-appointed attorney. Reports of court examiners have only one set of eyes on them that matter– the judge who assumes the power of trier of fact and trier of law and as such acts as the prosecutor whose unopposed evidence and testimony is the only evidence considered in making a ruling.


The imposition of a lifelong sentence of guardianship typically follows especially in cases which turn out to be illegitimate or fraudulent. The incredible abuses that we have documented over the years are the natural outgrowth of this usurpation of power and abuse of authority.

It is convenient for some of us to think that probate guardianship abuses are the result of the modern-day emergence of ageism. Sadly, ageism has been around for a very long time but when modern-day disdain for the elderly in our throwaway society meets up with the limitless latitude of a court system that makes multi-millionaires out of court insiders who play along to get along, when judges and the courts they sit on rake in enormous amounts of money legitimately and sadly sometimes illegitimately, guardianship becomes a massive threat to everyday Americans with any assets.

The fact that there are good guardianships throughout the country is a testament to the integrity and propriety of many of our state courts and those who work in them. The temptation to abuse such enormous power is real. Good guardians and good lawyers and judges should be appalled and enraged by the ever-expanding number of documented egregious guardianship abuse cases that are identified on a nearly daily basis across the country. When the day comes when advocates for families caught in the guardianship abuse grindstone are joined by the good elements in the guardianship system, there may be hope that this palpable threat to American freedom can finally be eliminated.