Читать книгу Studies in Civics - J. T. McCleary - Страница 37

Jurisdiction.—The principal business and characteristic work of probate courts is the settlement of the estates of deceased persons. Jurisdiction extends in most states over both personal property and real estate. Incidentally probate courts appoint guardians for minors and others subject to guardianship, and control the conduct and settle the accounts of such appointees.

In many states jurisdiction wholly extraneous to the characteristic work of these courts is imposed upon them, or the probate business is associated with other jurisdiction in the same court. Thus, in Minnesota the judge of probate is petitioned in the organization of cities, as we have seen. In Wisconsin, the county court, which has charge of the probate business, has civil jurisdiction also. In Illinois, the county court in addition to the probate business has jurisdiction "in proceedings for the collection of taxes and assessments." And in Kansas, the probate court has jurisdiction in cases of habeas corpus.

Procedure in case a Will has been made.—The proceedings of a probate court have in view two chief objects, namely, to pay the debts of the deceased and to distribute the remainder of his property among those entitled to it. In case the deceased has left a will, the proceedings are as follows:

1. Petition for probate. Within a short time, usually thirty days, after the death of the testator, the executor or other custodian of the will presents it to the probate court with a petition that it be admitted to probate. (For form of petition, see p. 286.)

2. Citation to persons interested. Acting on the petition, the probate judge publishes in a newspaper a notice to all persons interested in the estate that at a specified time, action will be taken on the petition. To afford all who are interested an opportunity to be present at the "hearing," the notice must be published for a prescribed time, and in some states each of the heirs must, if possible, be personally notified.

3. Hearing the proofs. At the time specified in the notice, unless postponement be granted for cause, the proofs of the validity of the will are presented. It must be shown that the testator is dead, that the instrument was executed by him voluntarily, in the manner prescribed by statute, and while he was of "sound mind and disposing memory." Usually it will be sufficient for the two witnesses to the instrument to appear and testify to the material facts. If any one interested in the distribution of the property thinks that this will should not be accepted as the "last will and testament" of the deceased, he should now enter objections. In case of a contest, the proceedings are about the same as those in a justice or circuit court; but there is no jury in the probate court, nor is there any plea except the petition.

4. Admission to probate. If the proofs are satisfactory to the court, the will is "admitted to probate," that is, it is accepted as true and valid. Its validity is established by a decree of the court, and a certificate of the fact is attached to the will. A copy of the will is made in a book kept for the purpose. The original and all the papers in the case are filed and preserved by the judge of probate. (See pp. 287 and 288.)

5. Issuance of letters testamentary. The genuineness of the will being established, it is now in order to carry out its provisions. Usually the testator designates in his will the person or persons whom he wishes to act as his representative in the settlement of the estate. Such a person is called an "executor." If no person is so named, the court appoints an "administrator with the will annexed." In either case the person derives his authority from the court. Unless excused in the will, the executor or administrator is required to give bonds proportioned to the amount of the personal property in the estate, the amount of bond being specified by the court. The executor is then furnished with a copy of the will and with "letters testamentary." (The authority granted by the letters may be seen by reference to the form in the appendix, p. 288.)

6. Notice to creditors. It is a principle of law that all just debts shall be paid out of one's property before any further disposition thereof can take effect. In order that all persons having claims against the estate of the deceased may have an opportunity to present their accounts, a time for such presentation is designated by the court, and due notice thereof is given, usually by publication in a newspaper.

7. Inventory of the estate. In the meantime, the executor makes an inventory of the property, and appraisers appointed for the purpose "put a value" thereon, the several items of the inventory being valued separately.

8. Auditing claims. At the time appointed in the notice, the court passes upon the claims of creditors. Since unscrupulous persons are at such times tempted to present fraudulent claims, the judge exercises great care in examining the accounts. To facilitate matters it is required that accounts be itemized, and that they be verified by oath.

Debts are paid out of the personal property, if there be enough. If not, the court authorizes the executor to sell real estate to pay the balance.

9. Settlement of estate and division of property. The executor having collected debts due the estate and settled all claims against it, makes his final statement to the court, and the remaining property is distributed among the heirs and legatees. To continue and perfect the chain of title, the division of the real estate is recorded in the office of the register of deeds.

If there are minor heirs, the court appoints guardians for them.

Procedure in case no Will is made.—If there is no will, the four steps which have in view the establishment of the validity of the will, are unnecessary. The initial step in this case is the appointment of an administrator to do the work which under a will is done by the executor. In order that an administrator acceptable to the heirs may be appointed, the following steps are taken:

1. Someone interested in the estate petitions for the appointment of a certain person as administrator.

2. Notice of hearing is given by publication, citing those interested in the estate to appear at a certain day if they desire to enter any objection to the appointment.

3. If at the time specified for the hearing no objection is made, the person petitioned for is appointed administrator, and "letters of administration" are issued to him.

Then beginning with the sixth step the proceedings are substantially the same as in case of a will, except that the basis of distribution in the ninth is the law instead of the will.

"As befits an authority which thus pervades the sanctity of a household, crosses the threshold and exposes to public view the chamber of mourning, probate jurisdiction in the United States is exercised with great simplicity of form as well as decorum." [Footnote: Schouler's Executors and Administrators.]

Some Pertinent Questions.

What is a will? [Footnote: See Dole's Talks about Law.] Why must it be in writing? Must it be in the handwriting of the testator? Why are the witnesses essential? Is the form of a will essential? Is it necessary that the witnesses know the contents of the will?

What is the difference between an heir and a legatee? May either be witness to the will? Why? If the witnesses die before the testator, how can the will be proved?

What is a codicil? If there be two wills of different dates, which will stand? What difference does it make whether a person having property makes a will or not?

Group the proceedings in case of a will into three groups.

A minor may have two guardians, one of its person and the other of its property? Why? What is to hinder a guardian from abusing his trust?