What is a Surrogate?

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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.

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