Bible Encyclopedias
Probate

Ireland

In 1867 an act on lines similar to the English act was passed for Ireland and under the Irish Judicature Act of 1877 the then existing court of probate was merged in the High Court of Justice.

Scotland

Confirmation includes both the probate and letters of administration of English procedure. Without confirmation by the court interference by the executor becomes a vitious intromission. Originally confirmation of testaments of movables fell, as in England, under the cognizance of the church courts. Such jurisdiction certainly existed at the time of regiam majestatem. This ecclesiastical right continued through the commissary court at Edinburgh (constituted by Queen Mary in 1563), and the local commissaries, until modern times when the jurisdiction of the courts was at first transferred and then abolished by a series of enactments from the Commissary Courts Act 1823 to the Sheriff Courts Act 1876. The act of 1823 placed the commissary jurisdiction in the sheriff courts; by the act of 1876 the sheriffs sit as sheriffs in testamentary matters, no longer as commissaries. Confirmation of wills where the whole estate is under £300 is regulated by the Customs and Inland Revenue Act 1881 and other acts. An eik is an addition to a confirmation made on discovery of additional effects of the deceased after confirmation.

United States. - Probate is granted in some states by the ordinary chancery or common law courts, but more frequently by courts of special jurisdiction, such as the prerogative court in New Jersey, the surrogates' court in New York, the orphans' court in Pennsylvania.

"In a great majority of the states the original equitable jurisdiction over administrations is in all ordinary cases - without any special circumstances such as fraud, or without any other equitable feature such as trust - either expressly or practically abrogated. The courts of equity, in the absence of such special circumstances or distinctively equitable features, either do not possess or will not exercise the jurisdiction, but leave the whole matter of administrations to the special probate tribunals".. so that "unless the case involves some special feature or exceptional circumstances of themselves warranting the interference of equity, such as fraud, waste, and the like, or unless it is of such an essential nature that a probate court is incompetent to give adequate relief, or is one of which the probate court having taken cognizance has completely miscarried and failed to do justice by its decree, the courts of equity will refuse to interpose and to exercise whatever dormant powers they may possess, but will leave the subject matter and the parties to the statutory forum which the legislature plainly regarded as sufficient and intended to be practically exclusive" (Rice's Probate Law, pp. 4 and 5).

Probate courts are in most if not all the states courts of record, having a public seal and a clerk (or the judge has authority to act as clerk): they issue process and execute their decrees by appropriate officers in the same manner as the common law and chancery courts. They sit at stated terms. They have power to punish for contempt, and to compel obedience to their orders and decrees, and their judgments upon matters within their jurisdiction are enforced usually by the same means as common law and chancery courts (Noemen's Law of Administration, § 145).

Jurisdiction as to wills and their probate as such is neither included in nor excepted out of the grant of judicial power to the courts of the United States (i.e. the Federal as distinguished from the state courts). So far as it is ex parte and merely administrative it is not conferred, and it cannot be exercised by them at all until in a case at law or in equity,its exercise becomes necessary to settle a controversy by reason of the (diverse) citizenship of the parties. An action to set aside the probate of a will of real estate may be maintained in a Federal court when the parties on one side are citizens of a different state from the parties on the other side (Ellis v. Davis, 109 U.S. Reports, 485). Probate in solemn form, i.e. after due notice to all parties in interest is the almost universal form in use in the United States. One reason for this no doubt is that all documents affecting title to real estate must be recorded and probate in solemn form concludes all parties to the proceeding and thus tends to establish the title to all real estate passing under the will.

In the United States wills of real property must be separately proven in the proper probate court in each state in which the real property is situated, unless statute dispenses with separate probate (each state being "foreign" to every other for this purpose). Copies of such will and probate should be filed also in the office of the register of deeds of each county in the state in which any real property belonging to the testator is situated.

In the state of New Jersey it has been held that an unprobated will is capable of conveying an interest in the property devised, and when a conveyance is made under a power in the will before probate a subsequent probate validates the conveyance (1906, Mackey v. Mackey, 63 Atl. Rep. 984).

In Illinois a court of equity has no inherent power to entertain a bill to contest a will (1906; O'Brien v. Bonfield, 220 Ill. Rep. 219). In Missouri a foreign (New York) will of real estate in Missouri, probate of which was duly recorded in Missouri, cannot be collaterally attacked, and cannot be set aside by direct proceeding after being filed for record more than five years in Missouri (1907; Cohen v. Herbert, 104 So. W. Rep. 84).