Appealing an Orphan’s Court Decision

Learn about the procedure to appeal an Orphan's Court (probate court) decision.

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The Orphans’ Court is Maryland’s probate court. Most people encounter the court based on its jurisdiction over the administration of estates. However, the court also presides over other specific matters, such as the guardianship of the property of minors.

If you disagree with the decisions of the Orphans’ Court, you may have a right to appeal. An appeal is the legal process where you are asking a higher court to review a decision made in the lower court. Learn more about appeals.

 

Where to file your appeal? 

If you are appealing a decision of the Orphan’s Court, you can appeal to the circuit court in the same county OR the Appellate Court of Maryland. EXCEPT, if you are in Harford County or Montgomery County, your only option is to appeal to the Appellate Court. 

This article addresses appealing a decision of the Orphan’s Court to the circuit court. If you are looking for information about appealing to the Appellate Court, learn more about that topic here.

Read the Rule: Md. Rule 7-501 

 

Notice of Appeal 

The first step is to notify the Register of Wills. If you are filing an appeal in the circuit court, you must file the notice of appeal with the Register of Wills within 30 days of the entry of the judgment or order from which you are appealing. 

If one party files a timely notice of appeal, then any other party may file a notice of appeal within 10 days after the date on which the first notice of appeal was served or within 30 days after entry of the judgment or order from which the appeal is taken, whichever is later. 

Read the Rules: Md. Rule 7-502; Rule 7-503 

 

Filing Fees 

If you choose to appeal your case and believe you cannot afford to pay the costs of filing for an appeal, you can request a waiver for the requirement that these costs be prepaid.

Remember, if your request is approved, the waiver only removes the requirement to pay the costs of filing for an appeal upfront. You may still have to the pay the court fees at the end of the appeal, unless the court orders the other party to pay those fees and costs. Note, there is a process of asking the court for a final waiver of costs at the end of the case. Learn more about filing fee waivers.

Can't Afford Appellate Costs? from the Maryland Courts

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Stay of Proceedings 

A stay of proceedings halts the legal progress of the case in the Orphans’ Court. Generally, an appeal from the Orphans’ Court stays all proceedings in the Orphans’ Court related to the issue that has been appealed. It does not, however, stay any proceedings in the Orphans’ Court that do not concern the issue appealed, if the Orphans’ Court can provide for conforming to the appellate court’s decision. There are exceptions. For example, an appeal from an Orphans’ Court’s final decision removing a personal representative does not stay an order appointing a successor personal representative or special administrator.

Read the Law: Md. Code, Courts and Judicial Proceedings § 12-701

 

Record 

The Register of Wills must transmit the record to the circuit court within 60 days after the date the first notice of appeal is filed. While the Register of Wills will transmit the record, it is your responsibility to make sure that it happens on-time. If more time is needed, you can ask the circuit court for more time by filing a motion with the circuit court. There is a fee to prepare and transmit the record. Unless the court has granted a prepayment waiver, the person appealing the case (the “appellant”) is responsible for the costs of preparing the record. Be aware that if you do not pay this fee, you risk the Court striking your notice of appeal. 

The record on appeals includes a certified copy of the docket entries in the estate proceedings and all original papers (or a certified copy) filed in the Orphans’ Court. However, the parties can agree to exclude certain documents as well as supplement the record by paying for and filing a transcript. 

If possible, consider submitting an agreed statement of the case. This statement covers how the questions raised for appeal arose and were decided as well as any facts or allegations that are necessary to decide the question on appeal. If the parties can agree on this statement, then they may sign and, upon approval by the Orphans' Court, file the statement with the Register of Wills. In this scenario, the record on appeal would consist of the statement of the case, the judgment or order from which the appeal is taken, and any Orphans’ Court opinion. That said, the circuit court can still direct the Register of Wills to transmit all or part of the balance of the record in the Orphans' Court as a supplement to the record on appeal.

Read the Rule: Md. Rule 7-505; 6-464 

 

Presenting Your Appeal to the Circuit Court 

If you appeal a decision of the Orphans’ Court to the circuit court, then the appeal is heard de novo. This means that the circuit court will not consider the trial at the Orphans’ Court, and you will present your case all over again. When presenting your case, you must follow the circuit court rules. However, when it comes to the form and sufficient of pleadings in the record on appeal, those are governed by the orphans’ courts rules. Learn more about presenting your case.

Read the Rule: Md. Rule 7-508; 7-504 

 

Dismissing an Appeal 

Before you get to the hearing, it is possible for the circuit court to dismiss your appeal. Dismissing an appeal means that the appeal case is over and will not proceed. The circuit court does not make any decisions on the actual questions raised in the appeal.

The circuit court may dismiss an appeal if:

  • the appeal is not allowed by law;

  • you did not properly file a Notice of Appeal with the Register of Wills within the required time frame;

  • the record was not transmitted in time, unless the failure to transmit was due to the act/omission of a judge, the Register of Wills, a clerk of the court, or the appellee (the person against whom the appeal is filed);

  • you withdrew the appeal;

  • you failed to appear for a proceedings; or

  • the case has become moot (moot means that any further proceedings will have no effect on the question on appeal). 

Read the Rule: Md. Rule 7-507 

 

Appealing the Circuit Court’s Decision 

If you disagree with the circuit court’s decision, you may have the option to appeal to the Court of Special Appeals. Learn more about filing an appeal in the Appellate Court. 

Read the Case: Carrick v. Henley, 44 Md. App. 124 (Court of Special Appeals, 1979)