HISTORY OF INHERITANCE: PART II
History of Probate Law
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By Harry L. Munsinger, J.D., Ph.D.
ou cannot take it with you, so what happens to your property when you die? Assets can be transferred by drafting a will, or a probate court will distribute your estate by the laws of intestate succession after you die. The word “probate” derives from the Latin word “probationem,” which means approval, proving, or trial. Black’s Law Dictionary defines “probate” as a “[c]ourt procedure by which a will is proved to be valid or invalid; though in current usage this term has been expanded to generally refer to the legal process wherein the estate of a decedent is administered.”1 Part I of this series explored historical systems of intestate succession. Part II of this series describes the development of probate processes under English and American law. The particular procedures have varied throughout history, but in general—once a will is validated—a probate court issues letters testamentary appointing an executor to gather assets, pay proper debts, and distribute assets to beneficiaries.
Origins of Probate Practices English and American probate procedures developed from the ancient Roman practice of breaking the seals on a will before witnesses who originally attested the will. Early Roman wills had to be witnessed by six or seven persons who affixed their seals to the will (called a “will under seals”). When an ancient Roman will was opened before or after the testator died, a majority of the witnesses who had affixed their seals had to be present at the opening, although a witness could send a friend in his place if he could not attend in person. The witnesses or their representatives had to verify that the seals were unbroken when the will was withdrawn for inspection. After an ancient Roman will was opened, the witnesses or representatives had to state that they recognized their seals and were satisfied that the will was intact when it was opened and had not been altered. English courts copied the practice of validating wills from the Romans, and different courts shared jurisdiction over the probating of wills in early England.
Ecclesiastical and Common Law Courts Before the Norman Conquest, there were no ecclesiastical courts in England, so the clergy had to file suit in secular common law courts when they had a legal dispute. William the Conqueror established
The particular procedures have varied throughout history, but in general—once a will is validated—a probate court issues letters testamentary appointing an executor to gather assets, pay proper debts, and distribute assets to beneficiaries.
ecclesiastical courts, in addition to existing common law courts, and assigned jurisdiction over the inheritance of personal property to ecclesiastical courts, while jurisdiction over the inheritance of land was retained in common law courts. Because bishops were trained in Catholic canon law, the rules governing probate of a will were based primarily on Catholic law rather than English common law. However, ecclesiastical courts did not have exclusive jurisdiction over wills bequeathing personal property because creditors could also sue the deceased person’s estate in a common law civil court and receive a judgment for debts owed. Neither ecclesiastical nor common law courts were suited to handle conflicting claims of creditors and heirs, so English chancery courts evolved to resolve such conflicts.
Chancery Courts Chancery courts were administered by the king’s chancellor and served as courts of equity with flexible rules of procedure. When there were conflicting claims to land or personal property, these cases were assigned to chancery courts if the chancellor believed common law courts might produce an unfair outcome. Chancery courts heard evidence and ordered the administrator of the will to carry out its decision, or such courts took charge of the estate and disposed of it through their own administrative actions. However, the chancery courts could not act until after an ecclesiastical court had issued letters of administration to the executor. July–August 2020
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San Antonio Lawyer 17
