Final plan for incorporating probate courts into judicial branch submitted to the legislature


The Commission to Create a Plan to Incorporate the Probate Court into the Judicial Branch held its final meeting on November 30. The commission discussed the recommendations to be made in its final report, which is due to the Legislature by December 1, and voted to approve a final plan.

The commission was created by a joint resolution passed by the Maine Legislature in July 2021 and was tasked with creating a plan to create a probate court system with full-time judges, as well as to describe how it would be funded.

The commission initially voted to accept a draft plan at its November 15 meeting. Of the 11 members who participated in the vote, Judge Jarrod Crockett cast the only dissenting vote. 

During its November 30 meeting, the 15-member commission voted to reaffirm the plan it previously approved, with the addition of a plan to transition the probate court system to state control. The vote passed by a vote of 9-1 among members present, with Crockett again casting the only dissenting vote.

During the commission’s final meeting, Crockett said that while he supported the ultimate goal of incorporating the probate court system into the state judicial system, he did not support the plan put forward by the commission. Crockett said he had discovered a similar system to the one recommended by the commission had been in place in the 1960s and had to be fixed in the 1970s. He referred to the plan as “reinventing the Ford Pinto” and expressed concern about liability and labor issues created by a state probate court system staffed by county employees.

The commission’s plan recommends the “long-term goal of fully incorporating the Probate Court system into the state Judicial branch,” but its report also states it does not believe accomplishing this goal immediately is feasible.

The commission also recommends the incorporated probate court system have nine full-time, appointed judges with statewide jurisdiction. There would be at least one probate judge assigned to each of the eight court regions in the commission’s recommendations and one probate judge who would serve as Chief Judge of the Probate Court, and would be designated as such by the Chief Justice of the Supreme Judicial Court. 

Like the other probate judges, the chief judge would have judicial responsibilities, but would also be responsible for overseeing some administrative tasks, including creating a statewide probate court schedule, preparing annual reports, and ensuring uniformity of the probate court’s processes and procedures.

The commission also anticipated that implementing the plan would require new judicial branch staff, including two law clerks, two judicial administrative assistants, eight judicial marshals, a facilities manager, and an information technologies support person. 

Its plan would also preserve the existing system of county registers of probate, under which elected county registers and staff serve as county officers and employees. Probate court fees would continue to be retained by counties as a way to offset the cost of funding county registries and staff.

The group’s proposals initially recommended that the new system be reviewed by a 15-member study group similar in composition to the current commission three years after the plan is implemented. But because the transition plan recommended by the commission moves probate judges under state control in phases as a result of the staggered terms of currently-elected probate judges, the recommendation for review was ultimately changed to 2-years after full implementation of the plan. The review would begin January 1, 2027.

Before holding its vote, the commission debated recommendations to be included in the final plan, as well as whether to include rationales supporting those recommendations. 

Despite voting to approve the transition plan, commission members discussed the impact the staggered probate judge terms were likely to have on the judicial system.

Because probate judges are currently elected, and terms are staggered across the state, the plan approved by the commission is implemented in phases, with the final probate judge being incorporated into the state judicial branch in December 2024.

Judge Elizabeth Mitchell questioned the authority the chief probate judge, a state employee, would have over judges who remained elected and were answerable to counties. 

Rep. Barbara Cardone (D-Bangor) replied that the chief judge would likely prepare for new judges coming on board, but wouldn’t have authority over probate judges who remained with the county.

Leo Delicata, a member of the Maine State Bar Association and commission member, suggested that legislation could allow probate judges to run for 2-year terms, which would allow the terms of all county probate judges to expire at the same time, and then move simultaneously to the state judicial system.


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