Orphans’ Court Appeal to Circuit Court in Maryland

In Maryland, the Orphans’ Court is the state’s probate court, and the administration of estates occur within this court. Litigants who have a legal issue determined in the Maryland Orphans’ Court can often appeal those decisions directly to the Maryland Circuit Court or the Maryland Court of Special Appeals.

Each Maryland Orphans’ Court appeal is governed by Maryland Rules 7-501 et seq. When a decision by the Orphans’ Court’s was legally incorrect, an Orphans’ Court appeal is a viable option to obtain a proper legal result. However, the timing of the Orphans’ Court appeal is important because “the notice of appeal” that needs to be filed in the Orphans’ Court must “be filed within 30 days after entry” of the judgment or order being appealed. See Md Rule 7-503. It is also important to note that an appeal from an Orphans’ Court order to the Circuit Court will be heard de novo – meaning that the Circuit Court will review the appeal issue as if for the first time. See Md Rule 7-508. However, certain Orphans’ Court jurisdictions — Harford County and Montgomery County — are not permitted to appeal to the Circuit Court; and litigants in Harford and Montgomery counties Orphans’ Courts can only appeal to the Court of Special Appeals. As the Circuit Court reviews the Orphans’ Court’s decision de novo, the Circuit Court can determine – on its own – the correct legal conclusion that was before the Orphan’s Court. Through this Orphans’ Court appeal process, a litigant who believes that the Orphans’ Court made an incorrect decision can file a notice of appeal and have the Circuit Court review the matter. 

Similarly, but different, a litigant before the Maryland Orphans’ Court can also petition the Orphans’ Court to have the Circuit Court (and a jury within the Circuit Court) determine an issue at law within a matter that is before the Orphans’ Court. See Md Code, Est. & Trusts § 2-105(b); Md Rule 6-434. This “issue determination” is different from an Orphan’s Court appeal (under Maryland Rules 7-501 et seq.) because, here, the party is specifically requesting – at the first instance – that an Orphans’ Court issue be determined by the Circuit Court. Only certain issues can receive this issue transfer treatment; specifically, “[a]n issue may be sent to [the Circuit Court] for trial only when (1) the Orphans’ Court has jurisdiction of the subject; (2) the question is properly before the Orphans’ Court; and (3) the issue is relevant and material to the question before the Orphans’ Court.” (Hill v. Lewis).

The genesis of this issue transfer process has been described by the Court of Special Appeals in Banashak v. Wittstadt: “Although it is of ancient lineage, the practice of an orphans’ court’s transmitting issues to a circuit court for jury fact-finding is, by any reckoning, an odd procedure.  The measure is a child born of necessity.  An orphans’ court having no jury of its own, sometimes needs to borrow one from someone else, even as it might borrow a bailiff or the use of a courtroom.  In Maryland’s four-tiered judicial system, that someone else is, by process of elimination, the circuit court, for only the circuit court possesses the jury that needs to be borrowed.”  Nonetheless, after an issue is properly transmitted to the Maryland Circuit Court, what follows is a hybrid procedure: “Jurisdiction over the case always remains with the orphans’ court, even after transmittal.  Just as the Orphans’ Court, in effect, borrows the jury from the circuit court, it also, in effect, delegates to the circuit court judge the task of being the jury’s on site referee.” (Id. at 1267).

Longman & Van Grack’s appellate attorneys are well versed in all types of appeals — including Orphans’ Court appeals — throughout Maryland, Washington DC, and Virginia. Our appeals lawyers work closely with other lawyers in the firm’s probate group and civil litigation group to ensure that all of the legal arguments made before the court being appealed to are as strong as possible. If you would like to discuss our appeals attorneys’ assistance with a Maryland appeal, call Adam Van Grack and Longman & Van Grack’s appellate attorneys today at (301) 291-5027 to schedule a consultation in one of our firm’s Bethesda, Maryland or Rockville, Maryland Offices.