Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence [or real property] of the deceased at time of death in the absence of a legal will.
The granting of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under a will. A probate court decides the legal validity of a testator's (deceased person's) will and grants its approval, also known as granting probate, to the executor. The probated will then becomes a legal instrument that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having legal power to dispose of the testator's assets in the manner specified in the testator's will. However, through the probate process, a will may be contested.
An executor is the person appointed by a will to act on behalf of the estate of the will maker (the "testator") upon his or her death. An executor is the legal personal representative of a deceased person's estate. The appointment of an executor only becomes effective after the death of the testator. After the testator dies, the person named in the will as executor can decline or renounce the position, and if that is the case should very quickly notify the probate court registry accordingly. There is no legal obligation for that person to accept the appointment.
Executors "step into the shoes" of the deceased and have similar rights and powers to wind up the personal affairs of the deceased. This may include continuing or filing lawsuits to which the deceased was entitled to bring, making claims for wrongful death, paying off creditors, or selling or disposing of assets not particularly gifted in the will, among others. But the role of the executor is to resolve the testator's estate and to distribute the estate to the beneficiaries or those otherwise entitled.
Sometimes, in England and Wales, a professional executor is named in the will – not a family member but (for example) a solicitor, bank or other financial institution. Professional executors will charge the estate for carrying out duties related to the administration of the estate; this can leave the family facing additional and unexpected costs. It is possible to get a professional executor to renounce their role meaning they will have no part in dealing with the estate; or to reserve their power which means the remaining executors will carry out the related duties, but without the involvement of the professional executor.
When a person dies without a will then the legal personal representative is known as the "administrator". This is commonly the closest relative, although that person can renounce their right to be Administrator in which case the right moves to the next closest relative. This often happens when parents or grandparents are first in line to become the administrator but renounce their rights as they are old, don't have knowledge of estate law and feel that someone else is better suited to the task.
The appointment of an administrator follows a codified list establishing priority appointees. Classes of persons named higher on the list receive priority of appointment to those lower on the list. Although appointees named in the will and relatives of the deceased frequently receive priority over all others, creditors of the deceased and 'any other citizen [of that jurisdiction]' may act as an administrator if there is some cognizable reason or relationship to the estate. Alternatively, if no other person qualifies or no other person accepts appointment, the court will appoint a representative from the local public administrator's office.
A representative example of a complete probate clause, from the 14th century (or earlier) onwards, added at the bottom of the office transcribed copy of a will is as follows, taken from the will of Anthony Bathurst, 1697, PROB 11/438:
PROBATUM fuit huiusmodi testamentum apud Londinium coram  venerabili et egregio viro domino Richardo Raines, milite, legum doctore curiae praerogativae  Cantuariensis magistro custodis sive commissarii legitime constituti vicesimo tertio die mensis Junii Anno Domini Millesimo Sexcenti Nonaginta Septimo juramento  Mariae Bathurst relictae et executricis in dicto testamento nominata cui commissa fuit administratio omnium et singulorum bonorum, jurium et creditorum dicti defuncti de bene et fideliter administrando  eadem ad sancta Dei Evangelis jurat. Examinatur.
Translated literally as:
This will was proved at London before the worshipful Sir Richard Raines, knight, Doctor of Laws, Master Keeper or Commissary of the Prerogative Court of Canterbury, lawfully constituted, on the twenty third day of the month of June in the year of our Lord one thousand six hundred and ninety seven, by the oath of Mary Bathurst, relict and executrix named in the said will, to whom administration was granted of all and singular the goods, rights and credits of the said deceased, sworn on the holy Gospel of God to well and faithfully administer the same. It has been examined".
The English noun "probate" derives directly from the Latin verb probare, to try, test, prove, examine, more specifically from the verb's past participle nominative neuter probatum, "having been proved". Historically during many centuries a paragraph in Latin of standard format was written by scribes of the particular probate court below the transcription of the will, commencing with the words (for example): Probatum Londini fuit huismodi testamentum coram venerabili viro (name of approver) legum doctore curiae prerogativae Cantuariensis... ("A testament of such a kind was proved at London in the presence of the venerable man ..... doctor of law at the Prerogative Court of Canterbury...") The earliest usage of the English word was in 1463, defined as "the official proving of a will". The term "probative," used in the law of evidence, comes from the same Latin root but has a different English usage.
Probate is a process of improvement that proves a will of a deceased person is valid, so their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:
Local laws governing the probate process often depend on the value and complexity of the estate. If the value of the estate is relatively small, the probate process may be avoided. In some jurisdictions and/or at a certain threshold, probate must be applied for by the Executor/Administrator or a Probate lawyer filing on their behalf.
A probate lawyer offers services in probate court, and may be retained to open an estate or offer service during the course of probate proceedings on behalf of the administrator or executor of the estate. Probate lawyers may also represent heirs, creditors and other parties who have a legal interest in the outcome of the estate.
In Australia, probate refers to the process of proving of the will of a deceased person and also to a Grant of Probate, the legal document that is obtained.
There is a Supreme Court probate registry in each jurisdiction that deals with probate applications. However, each State and Territory has slightly different laws and processes in relation to probate. The main probate legislation is as follows:
Only the executor(s) of a will can apply for a Grant of Probate. It is the duty of the executor(s) of the will to obtain probate in a timely manner. The executor(s) can apply for probate themselves (which is often done to reduce legal fees) or be represented by a lawyer.
To obtain a grant of probate, there must have been a valid will and assets left by the deceased person. Usually, asset holders require a Grant of Probate unless:
After probate is granted, the executor(s) is also responsible for distributing the assets in accordance with the will. Some Australian jurisdictions require a notice of intended distribution to be published before the estate is distributed.
The main source of English law is the Wills Act 1837. Probate, as with the law of family settlements (trusts), was handled by the Court of Chancery. When that court was abolished in 1873, their jurisdiction passed to the Chancery Division of the High Court.
When someone dies, the term "probate" usually refers to the legal process whereby the deceased's assets are collected together and, following various legal and fiscal steps and processes, eventually distributed to the beneficiaries of the estate. Technically the term has a particular legal meaning, but it is generally used within the English legal profession as a term to cover all procedures concerned with the administration of a deceased person's estate. As a legal discipline the subject is vast and it is only possible in an article such as this to cover the most common situations, but even that only scratches the surface.
All legal procedures concerned with probate (as defined above) come within the jurisdiction of the Chancery Division of the High Court of Justice by virtue of Section 25 of the Senior Courts Act 1981. The High Court is, therefore, the only body able to issue documents that confer on someone the ability to deal with a deceased person's estate—close bank accounts or sell property. It is the production and issuing of these documents, known collectively as grants of representation, that is the primary function of the Probate Registries, which are part of the High Court, which the general public and probate professionals alike apply to for grants of representation.
There are many different types of grants of representation, each one designed to cover a particular circumstance. The most common cover the two most common situations—either the deceased died leaving a valid will or they did not. If someone left a valid will, it is more than likely that the grant is a grant of probate. If there was no will, the grant required is likely to be a grant of administration. There are many other grants that can be required in certain circumstances, and many have technical Latin names, but the general public is most likely to encounter grants of probate or administration. If an estate has a value of less than £5,000.00 or if all assets are held jointly and therefore pass by survivorship, for example to a surviving spouse, a grant is not usually required.
A will includes the appointment of Executor(s). One of their duties is to apply to the Probate Division of the High Court for a Grant of Probate. An Executor can apply to a local probate registry for a grant themselves but most people use a probate practitioner such as a solicitor. If an estate is small, some banks and building societies allow the deceased's immediate family to close accounts without a grant, but there usually must be less than about £15,000 in the account for this to be permitted.
The persons who are actually given the job of dealing with the deceased's assets are called "personal representatives" or "PRs". If the deceased left a valid will, the PRs are the "executors" appointed by the will—"I appoint X and Y to be my executors etc." If there is no will or if the will does not contain a valid appointment of executors (for example if they are all dead) then the PRs are called "administrators". So, executors obtain a grant of probate that permits them to deal with the estate and administrators obtain a grant of administration that lets them do the same. Apart from that distinction, the function of executors and administrators is exactly the same.
For an explanation of the intestacy probate process in England and Wales, see Administration of an estate on death.
An applicant may challenge the validity of a person's will after they have died by lodging a Caveat and requisite fee at the probate registry. This prevents anyone from obtaining a grant of probate for that person's estate for six months, which the applicant can shortly before that point apply to extend. A caveat is not be used to extend the time for bringing a claim for financial provision from a person's estate, such as under the Inheritance (Provision for Family and Dependants) Act 1975. The court can order costs against an applicant using a caveat for that purpose.
To challenge the caveat, the intended executor sends a completed “Warning” form to the probate registry. This document will be sent to the person who entered the caveat, and for the caveat to remain, they will have to enter an Appearance at the probate registry. This is not a physical appearance; it is a further document to send to the probate registry within eight days of receiving the warning.
The equivalent to probate in Scotland is confirmation, although there are considerable differences between the two systems because of the separate Scottish legal system. Appointment as an executor does not in itself give confer authority to ingather and distribute the estate of the deceased; the executor(s) must make an application to the sheriff court for a grant of confirmation. This is a court order authorising them to "uplift, receive, administer and dispose of the estate and to act in the office of executor". A grant of confirmation gives the executor(s) authority to uplift money or other property belonging to a deceased person (e.g. from a bank), and to administer and distribute it according to either the deceased's will or the law on intestacy.
Most estates in the United States include property that is subject to probate proceedings. If the property of an estate is not automatically devised to a surviving spouse or heir through principles of joint ownership or survivorship, or otherwise by operation of law, and was not transferred to a trust during the decedent's lifetime, it is generally necessary to "probate the estate", whether or not the decedent had a valid will. For example, life insurance and retirement accounts with properly completed beneficiary designations should avoid probate, as will most bank accounts titled jointly or made payable on death.
Some states have procedures that allow for the transfer of assets from small estates through affidavit or through a simplified probate process. For example, California has a “Small Estate Summary Procedure” to allow the summary transfer of a decedent's asset without a formal Probate proceeding. The dollar limit by which the Small Estate procedure can be effectuated is $150,000.
For estates that do not qualify for simplified proceedings, a court having jurisdiction of the decedent's estate (a probate court) supervises the probate process to ensure administration and disposition of the decedent's property is conducted in accord with the law of that jurisdiction, and in a manner consistent with decedent's intent as manifested in his will. Distribution of certain estate assets may require selling assets, including real estate.
Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy insuring the decedent or bank or retirement account that names a beneficiary or is owned as "payable on death", and property (sometimes a bank or brokerage account) legally held as "jointly owned with right of survivorship".
Property held in a revocable or irrevocable trust created during the grantor's lifetime also avoids probate. In these cases in the U.S. no court action is involved and the property is distributed privately, subject to estate taxes.
The best way to determine which assets are probate assets (requiring administration) is to determine whether each asset passes outside of probate.
In jurisdictions in the U.S. that recognize a married couple's property as tenancy by the entireties, if a spouse (or partner in Hawaii) dies intestate (owning property without a will), the portion of his/her estate so titled passes to a surviving spouse without a probate.
If the decedent dies without a will, known as intestacy, the estate is distributed according to the laws of the state where the decedent resided.
If the decedent died with a will, the will usually names an executor (personal representative), who carries out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.
In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person is named administrator. An executor or an administrator may receive compensation for his service. Additionally, beneficiaries of an estate may be able to remove the appointed executor if he or she is not capable of properly fulfilling his or her duties.
The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.
After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes, including estate tax in the United States, if the estate is taxable at the federal or state level. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.
A party may challenge any aspect of the probate administration, such as a direct challenge to the validity of the will, known as a will contest, a challenge to the status of the person serving as personal representative, a challenge as to the identity of the heirs, and a challenge to whether the personal representative is properly administering the estate. Issues of paternity can be disputed among the potential heirs in intestate estates, especially with the advent of inexpensive DNA profiling techniques. In some situations, however, even biological heirs can be denied their inheritance rights, while non-biological heirs can be granted inheritance rights.
The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.
A general election was held in the U.S. state of Vermont on November 6, 2018. All of Vermont's executive officers were up for election as well as Vermont's Class I Senate seat and at-large seat in the United States House of Representatives. Primary elections were held on August 14, 2018.Administration (probate law)
In common-law jurisdictions, administration of an estate on death arises if the deceased is legally intestate, meaning they did not leave a will, or some assets are not disposed of by their will.
Where a person dies leaving a will appointing an executor, and that executor validly disposes of the property of the deceased within England and Wales, then the estate will go to probate. However, if no will is left, or the will is invalid or incomplete in some way, then administrators must be appointed. They perform a similar role to the executor of a will but, where there are no instructions in a will, the administrators must distribute the estate of the deceased according to the rules laid down by statute and the common trust.
Certain property falls outside the estate for administration purposes, the most common example probably being houses jointly owned that pass by survivorship on the first death of a couple into the sole name of the survivor. Other examples include discretionary death benefits from pension funds, accounts with certain financial institutions subject to a nomination and the proceeds of life insurance policies which have been written into trust. Trust property will also frequently fall outside the estate but this will depend on the terms of the trust.Court of Probate
The Court of Probate was created by the Court of Probate Act 1857, which transferred the jurisdiction of the ecclesiastical courts in testamentary matters to the new court so created.
The Judge of the Court of Probate also presided over the Court for Divorce and Matrimonial Causes, but the two Courts remained separate entities.
On 1 November 1875, under the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875, the Judge of the Court of Probate was transferred, as its President, to the Probate, Divorce and Admiralty Division of the High Court of Justice.David Standridge
David Standridge is an American politician from the state of Alabama. A member of the Republican Party, Standridge serves in the Alabama House of Representatives, representing the 34th district and is from Hayden, AL.
Standridge was elected to the Alabama House in 2012. He previously served as a probate judge in Blount County, Alabama. In 2014, he was elected to serve as Chairman of the House Rural Caucus. In 2016, Standridge called for Robert J. Bentley, the Governor of Alabama, to resign following allegations of an affair. In 2018 he proposed legislation, subsequently adopted by the legislature, that gives "public bodies" the right to display "In God We Trust".Essex Probate and Family Court
Essex Probate and Family Court is a Court Located in Salem, Massachusetts and Lawrence, Massachusetts in the County of Essex. The court deals in Probate and Family Law matters.Estate planning
Estate planning is the process of anticipating and arranging, during a person's life, for the management and disposal of that person's estate during the person's life and at and after death, while minimizing gift, estate, generation skipping transfer, and income tax. Estate planning includes planning for incapacity as well as a process of reducing or eliminating uncertainties over the administration of a probate and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can be determined by the specific goals of the client, and may be as simple or complex as the client's needs dictate. Guardians are often designated for minor children and beneficiaries in incapacity.The law of estate planning overlaps to some degree with elder law, which additionally includes other provisions such as long-term care.Geauga Park District
The Geauga Park District, among the Ohio Metroparks, manages a system of nature preserves scattered throughout Geauga County, Ohio. The network of 22 open parks, as well as preserves and future parks, encompass more than10,000 acres (40 km2) and includes 60+ miles of walking, bicycle and horse trails, picnic areas, a nature center and abundant fishing holes.
The park district is operated by a three-member Board of Park Commissioners, each appointed to three-year terms by the Geauga County Probate Judge. According to Chapter 1545 of the O.R.C., the Board is empowered by state law to hire professionals to manage park property, acquire land, designate law enforcement officers, and levy taxes to fund its operations. To sell or lease land, the Board must gain approval of the Probate Judge. The Board must maintain accurate and permanent records of its proceedings and is subject to open records laws in Ohio.General jurisdiction
A court of general jurisdiction is a court with authority to hear cases of all kinds – criminal, civil, family, probate, and so forth.High Court of Justice
The High Court of Justice in England is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales. Its name is abbreviated as EWHC for legal citation purposes.
The High Court deals at first instance with all high value and high importance cases, and also has a supervisory jurisdiction over all subordinate courts and tribunals, with a few statutory exceptions.
The High Court consists of three divisions: the Queen's Bench Division, the Chancery Division, and the Family Division. Their jurisdictions overlap in some cases, and cases started in one division may be transferred by court order to another where appropriate. The differences of procedure and practice between divisions are partly historical, derived from the separate courts which were merged into the single High Court by the 19th-century Judicature Acts, but are mainly driven by the usual nature of their work, for example, conflicting evidence of fact is quite commonly given in person in the Queen's Bench Division, but evidence by affidavit is more usual in the Chancery Division which is primarily concerned with points of law.
Most High Court proceedings are heard by a single judge, but certain kinds of proceedings, especially in the Queen's Bench Division, are assigned to a divisional court, a bench of two or more judges. Exceptionally the court may sit with a jury, but in practice normally only in defamation cases or cases against the police. Litigants are normally represented by counsel but may be represented by solicitors qualified to hold a right of audience, or they may act in person.
In principle, the High Court is bound by its own previous decisions, but there are conflicting authorities as to what extent this is so. Appeal from the High Court in civil matters normally lies to the Court of Appeal, and thence in cases of importance to the Supreme Court (the House of Lords before 2009); in some cases a "leapfrog" appeal may be made directly to the Supreme Court. In criminal matters appeals from the Queen's Bench Divisional Court are made directly to the Supreme Court.
The High Court is based at the Royal Courts of Justice on the Strand in the City of Westminster, London. It has district registries across England and Wales and almost all High Court proceedings may be issued and heard at a district registry.Law Reports
The Law Reports is the name of a series of law reports published by the Incorporated Council of Law Reporting.
The Council maintains that they are "'the most authoritative reports' and should always be 'cited in preference where there is a choice'." This series is now divided into four main sub-series:
Law Reports, Appeal Cases, covering decisions of the House of Lords (and, since 2009, the Supreme Court), the Privy Council and the Court of Appeal – started in 1866 as the Law Reports, English & Irish Appeals, renamed in 1875 and redesigned in 1891;
Law Reports, Chancery Division, covering decisions of the Chancery Division of the High Court – started in 1865 as the Law Reports, Chancery Appeal Cases, renamed in 1875 and redesigned in 1890;
Law Reports, Family Division, covering decisions of the Family Division of the High Court – started in 1865 as the Law Reports, Probate & Divorce Cases, renamed Law Reports, Probate, Divorce & Admiralty Division in 1875, renamed Law Reports, Probate in 1891 and renamed in 1972; and
Law Reports, Queen's Bench, covering decision of the Queen's Bench Division of the High Court – started in 1865, renamed Law Reports, Queen's Bench Division in 1875, renamed in 1891, renamed Law Reports, King's Bench in 1901 and renamed in 1952.Massachusetts Probate and Family Court
The Probate and Family Court of Massachusetts has jurisdiction over family matters such as divorce, paternity, child support, custody, visitation, adoption, termination of parental rights, and abuse prevention. Probate matters include jurisdiction over wills, administrations, guardianships, conservatorships and change of name. The Court also has general equity jurisdiction.
The Probate and Family Courts of Massachusetts serve 14 counties: Barnstable, Berkshire, Bristol, Dukes, Essex, Franklin, Hampden, Hampshire, Middlesex, Nantucket, Norfolk, Plymouth, Suffolk, and Worcester. In addition to probate matters, the courts archive divorce and estate records, wills, adoption cases, and legal change of name. These probate records can be obtained with a docket number and fee.Middlesex Probate and Family Court
This is the court that has jurisdiction over probate and family matters in Middlesex County, Massachusetts. It has two locations: 208 Cambridge Street and 121 Third Street, both in Cambridge, Massachusetts.Ohio Courts of Common Pleas
The Ohio Courts of Common Pleas are the trial courts of the state court system of Ohio.
The courts of common pleas are the trial courts of general jurisdiction in the state. They are the only trial courts created by the Ohio Constitution (in Article IV, Section 1). The duties of the courts are outlined in Article IV, Section 4. Each of Ohio's 88 counties has a court of common pleas. The Ohio General Assembly (the state legislature) has the power to divide courts of common pleas into divisions, and has done so, establishing general, domestic relations, juvenile, and probate divisions:
General divisions have original jurisdiction in all criminal felony cases, all civil cases in which the amount in controversy is more than $15,000, and all cases involving title to real estate, excepting eviction matters. General divisions also have appellate jurisdiction over the decisions of some state administrative agencies and of city agencies.
Domestic relations divisions have jurisdiction over proceedings involving divorce (dissolution of marriage), annulment, legal separation, spousal support, parental rights, children, etc.
Juvenile divisions hear cases involving juvenile delinquency (minors under 18 years of age charged with acts that would be crimes if committed by an adult) as well as cases involving unruly, dependent and neglected children. Juvenile courts have jurisdiction in adult cases involving paternity, child abuse, non-payment of child support, contributing to the delinquency of minors, and the failure to send children to school (truancy).
Probate divisions – Formerly probate was handled by separate probate courts under Ohio Constitution of 1851, which had original jurisdiction over the probate of wills, supervision of the administration of estates, and guardianship. In 1968, the Modern Courts Amendment to the Ohio Constitution was adopted, establishing probate divisions of the courts of common pleas instead. Probate courts additionally have jurisdiction over the issuance of marriage licenses, adoption proceedings, determination of sanity or mental competency and certain eminent domain proceedings. Probate judges may also act as marriage officiants and charge a fee for the service.Judges of the court of common pleas are elected to six-year terms on a nonpartisan ballot, although candidates may choose to run in partisan primary elections. In order to be appointed or elected to the court, a person must be an attorney with at least six years of experience in the practice of law.Pour-over will
A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his or her estate at the time of his or her death shall be distributed to the Trustee of the trust. Such device was always void at English common law, because it was not deemed as a binding trust, in that the testator can change the disposition of the trust at any time and therefore essentially execute changes to the will without meeting the formalities required for the change.
More recently, however, a number of jurisdictions have recognized the validity of a pour-over will. In the jurisdictions in the U.S. which allow a pour-over will, testators do not usually put all of their assets into trusts for the reasons of liquidity, convenience, or simply because they did not get around to do so before they died. A pour-over clause in a will gives probate property to a trustee of the testator's separate trust and must be validated either under incorporation by reference by identifying the previously existing trust which the property will be poured into, or under the doctrine of acts of independent significance by referring to some act that has significance apart from disposing of probate assets, namely, the revocable living trust (inter vivos trust). The testator's property is subject to probate until such time as the pour-over clause is applied, and the estate assets "pour" into the trust. The trust instrument must be either in existence at the time when the will with the pour-over clause is executed, or executed concurrently with the will to be a valid pour-over gift. However, the trust need not be funded inter vivos. The pour-over clause protects property not previously placed in a trust by pouring it into the previously established trust through the vehicle of the will.President of the Family Division
The President of the Family Division is the head of the Family Division of the High Court of Justice in England and Wales and Head of Family Justice. The Family Division was created in 1971 when Admiralty and contentious probate cases were removed from its predecessor, the Probate, Divorce and Admiralty Division.
The current President of the Family Division is Sir Andrew McFarlane (judge). Sir James Munby retired as president on 27th July 2018.Probate court
A probate court (sometimes called a surrogate court) is a court that has competence in a jurisdiction to deal with matters of probate and the administration of estates. In some jurisdictions, such courts may be referred to as Orphans' Courts, or courts of ordinary. In some jurisdictions probate court functions are performed by a chancery court or another court of equity, or as a part or division of another court.
Probate courts administer proper distribution of the assets of a decedent (one who has died), adjudicates the validity of wills, enforces the provisions of a valid will (by issuing the grant of probate), prevents malfeasance by executors and administrators of estates, and provides for the equitable distribution of the assets of persons who die intestate (without a valid will), such as by granting a grant of administration giving judicial approval to the personal representative to administer matters of the estate.
In contested matters, the probate court examines the authenticity of a will and decides who is to receive the deceased person's property. In a case of an intestacy, the court determines who is to receive the deceased's property under the law of its jurisdiction. The probate court will then oversee the process of distributing the deceased's assets to the proper beneficiaries. A probate court can be petitioned by interested parties in an estate, such as when a beneficiary feels that an estate is being mishandled. The court has the authority to compel an executor to give an account of their actions.
In some jurisdictions (e.g. Texas) probate courts also handle other matters, such as guardianships, trusts, and mental health issues (including the authority to order involuntary commitment to psychiatric facilities and involuntary administering psychiatric medication).Same-sex marriage in Alabama
Same-sex marriage has been legal in the U.S. state of Alabama since June 26, 2015, after the U.S. Supreme Court's ruling in Obergefell v. Hodges. However, as of December 2018, eight Alabama counties do not issue marriage licenses to any couples in order to avoid issuing them to same-sex couples. In May 2019, the Alabama legislature passed a bill replacing marriage licenses with marriage certificates in order to keep probate judges from violating their consciences and so that the remaining counties would resume marrying couples. These eight counties must begin issuing marriage certificates to all couples by August 2019.
Before the Supreme Court's decision in Obergefell v. Hodges on June 26, 2015 which held that the United States Constitution requires every state to recognize and license same-sex marriage, the legal status of same-sex marriage in Alabama had been the subject of a long legal battle.Federal court orders in two cases took effect on February 9, 2015, and 47 of the state's 67 counties began issuing marriage licenses to same-sex couples that day or shortly thereafter, despite an order from Alabama Supreme Court Chief Justice Roy Moore not to do so. The other counties either issued licenses only to opposite-sex couples or stopped issuing marriage licenses altogether. In both cases, a U.S. District Court had found the state's ban on same-sex marriage unconstitutional. The Eleventh Circuit Court of Appeals and the U.S. Supreme Court had declined state officials' requests for a stay.
On March 3, 2015, the Alabama Supreme Court, ruling in a different case, ordered the state's probate judges to stop issuing marriage licenses to same-sex couples, and they promptly complied, though a number of them refused to issue any marriage licenses at all. At least 545 same-sex couples married between February 9 and March 3, 2015.
Advocates for same-sex marriage rights responded with renewed efforts in federal court, and on May 21, 2015, a federal court ruled that all probate judges were obliged not to refuse to issue marriage licenses on the basis of the applicants being of the same sex, but stayed its ruling pending action by the U.S. Supreme Court.
Previously, the state banned the licensing of same-sex marriages and the recognition of such marriages from other jurisdictions by executive order of the Governor in 1996, by statute in 1998, and by constitutional amendment in June 2006.Superior Court of the District of Columbia
The Superior Court of the District of Columbia, commonly referred to as DC Superior Court, is the trial court for the District of Columbia. It hears cases involving criminal and civil law, as well as family court, landlord and tenant, probate, tax, and driving violations (no permit and DUI). All appeals of Superior Court decisions go to the District of Columbia Court of Appeals (though magistrate judge opinions are first appealed to a Superior Court Associate Judge).Will and testament
A will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will, see inheritance and intestacy.
Though it has at times been thought that a "will" was historically limited to real property while "testament" applies only to dispositions of personal property (thus giving rise to the popular title of the document as "Last Will and Testament"), the historical records show that the terms have been used interchangeably. Thus, the word "will" validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.