Thursday, March 13, 2008

Maryland's "Orphans' Courts" Might Change

On March 9, 2008, the Maryland Daily Record published a news item entitled "Lawmakers split on Orphans Court bills", by Barbara Grzincic, reporting the situation in Maryland where some judges of its Orphans' Court need not have a law degree.

The article notes a movement in the Maryland Legislature that could change that:

A proposal that would pave the way for more stringent requirements for Orphans Court judges has died in the House of Delegates, but is expected to see action this week in the Senate.

At present, Orphans Court judges in most jurisdictions don’t have to be lawyers. (The exceptions are Montgomery and Harford counties, where they are not only lawyers but circuit court judges).

Bills to add a law degree to the list of necessary qualifications failed in the 2007 session.

This year, crossfiled measures in the House and Senate took a less-direct approach: They would authorize a constitutional amendment, subject to a popular vote, to allow the legislature to set additional qualifications for Orphans Court judges.

The House rejected its bill, HB 387, twice last week — first by five votes, then, on reconsideration, by a single vote. Also last week, however, the Senate Judicial Proceedings Committee amended and approved the crossfiled SB 293, sending it on to the full Senate for consideration.
This is a general description of the Maryland Orphans' Courts, as posted by the Maryland Judiciary:
Maryland's first constitution, adopted in November of 1776, authorized a Register of Wills to oversee probate in each county. The following Spring, the General Assembly formally established the Orphans' Court as the mechanism for probate administration, with the Register of Wills as the Court's Chief Clerk.

Today, the Orphans' Court hears all matters involving decedents' estates which are contested and supervises all of those estates which are probated judicially. It approves accounts, awards of personal representative's commissions, and attorney's fees in all estates.

The Court also has concurrent jurisdiction with the circuit court in the guardianships of minors and their property.

All matters involving the validity of wills and the transfer of property in which legal questions and disputes occur are resolved by the Orphans' Court.

There are three judges who sit on the Orphans' Court in Baltimore City and in each of the counties, with the exception of Harford County and Montgomery County, where circuit court judges sit as judges of the Orphans' Court.
See also: "The Orphans' Court", posted by the Cecil County (MD) Orphans' Court, which provides both the history & the present status of the Orphans' Court in Maryland, along with a statement of the purpose of that distinctive court in Maryland:
The Judges of the Orphans' Court are elected by the people and are accountable to the people. After two centuries, the Orphans' Court is still a high privilege of citizenship in Maryland.

There is something unique and personal about the availability of the judges of a probate court to the people whose estates are to be administered. Their job is to enforce your will, to preserve the integrity of your estate, to protect the rights of your heirs, to settle disputes that may arise, and to safeguard your children's inheritance.

The three judges function as a team; they are part of the local community and the merge their different perspectives and experiences in the decision-making process for the good of the people they serve. * * *
Wikipedia provides a very brief background about "Orphans' Courts" in America (12/07):
The orphan's court was an organization established in the Chesapeake Bay colonies during colonization.

The major goal of the organization was to protect orphaned children and their right to their deceased family's estate from against claims and abuses by step-parents and others.

Modern-day orphan's courts are probate courts, hearing matters involving wills of decedents' estates which are contested and supervising estates which are probated judicially.

Probate courts are commonly referred to as orphans court, surrogate court, [or] court of ordinary, depending on the jurisdiction.

The Cecil County website answers the question so often asked when folks hear the name of that court: "Why is it called the Orphans' Court?"
The name and the idea behind Orphans' Court were taken from the Court of the Orphans of the City of London.

In the 17th century, this court protected the rights of minor children whose fathers had died. (At this time, women could not own property, so the survival of the mother was immaterial.)

The court could compel executors and guardians to file inventories and accounts and give security for the estates they administered.

When Maryland was settled, Lord Baltimore made sure that the citizens of his colony enjoyed the same protection. This was particularly important because ownership of property was available to all, but there was a high mortality rate.
Today, "Orphans' Courts" or "Orphans' Court Divisions" exist by that name only in Pennsylvania and Maryland.

At one time, beginning in 1653, New York had an "Orphans' Court" under Dutch leadership. Later, New York shifted to a "Surrogate's Court", which handles estates, guardianships, & adoptions.

New Jersey also had an Orphans' Court until 1906, but that specialized division of its courts became known as a "Surrogate's Court" too.

Delaware had an Orphans' Court, but it was abolished in 1970:

The Orphans' Court was one of the earliest courts in Delaware and like the other colonial courts was derived from the English judicial system.

Established by William Penn's new government in 1683, the Orphans' Court was founded "to inspect and take care of the Estates, Usage, and Employment of Orphans . . . That care may be taken for those, that are not able to take care for themselves."

Subsequent legislation gave the court added responsibilities relating to the guardianship of minors, real estate left intestate, partition of real estate, adoptions, and appeals from register of wills decisions.

The Orphans' Court was abolished in 1970, and its responsibilities and functions were divided among the Court of Chancery, Superior Court, and Family Court. * * *
The "Orphans Court" in Pennsylvania is well-described on the website of the Philadelphia (PA) Courts, under the heading "The History of Orphans' Court":
Philadelphians can take pride in the fact that Orphans' Courts have been held in this City since 1683. * * *

King Charles II granted the province of Pennsylvania to William Penn by Royal Charter dated March 4, 1681. William Penn came to Pennsylvania in October of 1682 and called a General Assembly. * * *

Sitting at Chester, on December 7, 1682, the first General Assembly of the Province of Pennsylvania enacted the 77th Law which provided that the justices of each County Court should sit, ". . . to inspect and take care of the estates, usage, and employment of orphans, which shall be called the Orphans' Court . . . that care may be taken for those, that are not able to take care for themselves." * * *

"It is probable, that both the name and jurisdiction of this court were borrowed from the Court of Orphans of the city of London, which had the care and guardianship of children of deceased citizens of London, in their minority, and could compel executors to file inventories, and give security for their estates."
See Opinion by Justice Sergeant in the matter of Wimmer's Appeal, 1 Wh. 95, 101 (1835).
Pennsylvania's court system became "unified" in 1970, after state constitutional changes in 1968. See: "A History of Pennsylvania's Courts", posted on the website of Pennsylvania's Unified Judicial System. Each former, stand-alone "Orphans' Court" then became an "Orphans' Court Division" of the court of common pleas of a judicial district instead.

So, there are just two states left -- Pennsylvania and Maryland -- having a segment of their court systems still known as an "
Orphans' Court".

Perhaps Maryland's Orphans' Court will be upgraded similarly. I do hope that they keep the name, though -- just for old times' sake.