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Appeals Regarding Probate Matters

Probate is a process of legally establishing the validity of a will before a judicial authority.  A deceased person’s testamentary documents acquire legal force through probate.  Appeals in matters of decedents’ estates are taken to an appellate court just as in other matters.  All probate is handled at the state level, and therefore the right of appeal from probate is entirely governed by statutes of the local jurisdiction.  In most cases, an appeal from probate goes to the local superior court.  In other cases, it might be directly to a state district court of appeal.

Any person aggrieved by a final order or judgment admitting or refusing to admit any will to probate can appeal.  Generally, three types of appeal come under probate appeal jurisdiction: an appeal from a final order admitting or denying will, from final decision in a will contest suit and appeal from an order determining heirship.  A final order or judgment from which an appeal lies either terminates the action itself or operates to divest some right to place the parties in their original condition.[i]

For an issue to be considered on appeal, it must first have been raised in trial court.  An appeal is usually filed as a review of a decision to see if the judge incorrectly interpreted or applied a law.  Usually, an appeal lies only from a final order.  An order affecting a substantial right made in a special proceeding is a final order. Thus, the first issue is whether the order appealed from affects a substantial right.  A substantial right is a legal right entitled to enforcement and protection by law.  Certain probate court orders, such as an order authorizing a claimant to present a claim against the estate after the expiration of the time allowed for presentation and an order making an election for an incompetent surviving spouse are orders made in special proceedings.[ii]

An order granting or denying an application for the removal of an administrator is a final disposition of a claim and is directly appealable.[iii] Moreover, an order appointing an administrator is considered final and hence is appealable.  An order reinstating an administrator is also appealable.  However, an order revoking an order of discharge and reopening the administration of an estate is an interlocutory order and hence is not appealable

[i]Green River Fuel Co. v. Sutton, 260 Ky. 288 (Ky. 1935)

[ii]Sheets v. Antes, 14 Ohio App. 3d 278 (Ohio Ct. App., Franklin County 1984)

[iii]Jones v. McPhillips, 77 Ala. 314 (Ala. 1884)

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