The History of Probate in America

The probate court is a very important element of the American justice system. Ever since the early years of civilization, ancestors have perished, leaving their fortunes to younger heirs. In many ancient cultures, the eldest son always received the fortune. Normally an eldest nephew would receive the land if a son did not exist. This was called a birthright, and was one of the honors of being the oldest man in the family. Famous stories in ancient literature discuss the value of the birthright, which came with a father's blessing and the responsibility to manage the family property. While this was once effective, in America, we do not honor a birthright system, or settle legal disputes by favoring the oldest child. This is why the probate courts are so important- they help squabbling families to fairly divide a decedent's estate and hold to the deceased person's wishes as much as possible.

The term "probate" comes from the Latin word "probatio" which means "to prove." This refers to the many debates in court where different family members fight to prove their inheritance to a will. In early English courts, probate matters were proven in court before an ecclesiastical judge. The religious system, which was entangled in the judicial system at the time, was responsible for determining the heir of a will, and administering estates. Also, any discrepancies where children were to be given a new guardian would be decided by the religious body. Many times orphans were taken in by the church and raised in charitable orphanages.

In Massachusetts in 1784, the first probate court was developed and implemented to discern the destiny of estates, assets, and offspring. Many of the states started to follow suit, declaring that they had "surrogate courts," "orphan courts" and "courts of the ordinary" (all synonyms of probate court.) In 1851, the Constitution removed probate from the jurisdiction of the common pleas courts. Instead, they mandated that each state have their own separate probate court, and that the state government create their own set of probate laws. In 1912, the government created the first amendment to the probate statutes in the Constitution. In 1951, 1968, and 1973, additional amendments molded the probate courts that we have today. Each state now has at least one elected probate judge, who handles the affairs of the estates.

Traditionally, the decedent of an estate will draft and file a will prior to passing away. He or she can also take other steps to plan for the future. This is called a testate probate, and makes things much simpler and saves controversy among the family. When there is not a will of any kind, the estate will undergo an intestate probate process where it will be divided equally among qualified heirs. The probate courts also determine where any young children will live and who will become their new guardians. Depending on the size of the state, there may be multiple probate courts, or the court may work closely with other branches of the judicial system. This way, they will be able to divide the responsibility and complete the probate process quicker.

Probate is intended to be a just way to divide an estate. Yet sometimes the courts may not be able to carefully apportion the assets. Maybe a piece of jewelry that was precious to you was given to another relative, or a precious heirloom was disposed of. If you feel that the court was unjust in dividing your inheritance, then you will want to contact a probate attorney and discuss the situation. Many times a fiduciary is a part of the probate process, and must organize a final court hearing before the probate process is deemed complete. During this process, the fiduciary will explain where all the assets were placed, and who owns what now. During this final hearing, you have the right to contest items that you believe were dealt with in the wrong way.