Talk:Probate

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I'm the person who made the substub. I think the subject is worthy of a wikipedia article. I'm just not qualified to write it.

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[edit] dont let probate die!

It'd be good if you had signed your name. Then we might have a better idea as to what is actually going on here and bounce some ideas off you about how to make this article better. Also, you might consider actually researching the topic and writing at least a complete stub yourself. I'd very much like to hear your ideas on the topic and work with you to flesh this out rather than letting it get ported over to wiktionary...--Jpittman 17:05, 7 Oct 2004 (UTC)
I wrote an article sized article on probate, but my only knowledge is in the US, which I believe is based on English law and custom (but I don't have any idea). Article would benefit from someone more worldly in this matter. Is probate unique to certain countries? Tempshill 18:55, 21 Oct 2004 (UTC)

Not sure, I am an iggurant American. There's a fairly detailed explanation of British probate procedure at administration. Ellsworth 01:01, 6 Feb 2005 (UTC)

English perspective

I've been tweaking the administration pages regarding the English law of succession; I would like to amend the initial definition of probate as here and in Commonwealth countries probate is the term for the process only where there is a will. Could someone clarify if that's the same in the US? I've put in a change but obviously if that should apply to the US too then it'll need changing again.

In the US probate is the generally understood term for the process of administering a will. It is called by different things in different states though. Intestate succession is also handled by probate court in some states, so many people call it probate even if it is technically not (I don't know) I suppose. Is that what you were looking for? - Taxman Talk 19:06, August 15, 2005 (UTC)

My attention was also drawn to the point of a trust as entity: is a trust an entity? Not under common law, Hague Convention etc, for tax purposes in the US yes a trust may be treated as an entity but query whether we should be definining what a trust *is* or how *it is treated*. An entity may be created to act as trustee but the trust itself does not have legal form.

Hmm, I'll defer to attny's on this point, but at least in the US a trust is in many cases treated like an entity, especially for taxation as you mentioned. In the case of an irrevocable trust even moreso it seems. The irrevocable trust is no longer the property of the grantor, has its own tax id number, and would be sued separately from the grantor, trustee, and beneficiary I would presume. A living trust would not be a separate entity in most treatments though, so that complicates things too. Though like I said, I'm not an attorney and I'm only familiar with US estate planning. - Taxman Talk 19:06, August 15, 2005 (UTC)

MMnn seems non- US probate is simply relegated to a footnote. Not all the world lives in the US ! Why is englishe probate simply headed "see administration". In Australian law probate & administration are two different things, so we still need a section for probate.Suastiastu

[edit] The Purpose of Probate

The introductory sentence of this article asserts that "Probate is the legal process of settling the estate of a deceased person; specifically, distributing the decedent's property." In reality, the purpose of probate is twofold. Nominally, it is to distribute the decedent's property to his or her rightful heirs. An equally important function of probate -- some would say the real reason probate exists -- is to notify a decedent's creditors of his or her passing so that said creditors can present legal claims against the decedent's estate. While the heirs of a decedent are most often laypersons, creditors are typically sophisticated and powerful entities who are intimately familiar with the procedures of probate. Without probate, the property of a decedent would pass to his or her heirs, rightful or otherwise, and the creditors would have no opportunity to collect what is due them. In practice, the heirs to an estate, rightful or otherwise, often take what they want without notifying anyone -- i.e., steal anything of value -- and there are no property or funds left to pay the decedent's creditors. // Internet Esquire 01:28, 22 August 2006 (UTC)

The use of the word "probate" to refer to the entire process of administering a decedent's estate, and regardless of whether or not there is a will, always makes me cringe. Although that is a popular meaning of the word, I think than an encyclopedia should be more precise, and that an article on "probate" should be limited to the probate of wills, with a cross-reference to other articles on intestacy and the administration of decedent's estates. Evansdb 12:43, 11 January 2007 (UTC)

[edit] Probative value

That's all very interesting but what about probative valu (The exclusionay discretion and weighing "probative value"? This goes hand in hand with prejudicial impact. Every day judges are faced to weigh the probative value versus the prejudicial impact. (that's why we have a pendulum scale that represents law). Do we make a new article? --CyclePat 20:36, 31 December 2006 (UTC)

[edit] Administration of an estate on death

The article Administration "just growed and growed" and had become an umbrella term covering half a dozen different concepts. The largest section was about business administration, so I MOVEd it to Administration (business) and created separate articles for the other topics. Specifically, "Adminstration of an estate on death" covers the legal concept in UK law, but may not be the best title: if anyone can think of a better title, please propose an alternative. --Concrete Cowboy 18:37, 8 January 2007 (UTC)

Are you sure it is the administration of an estate on death... what if you're not dead? Missing? etc... living will? Perhaps Administration (Legal Estate)? (I'm no expert though)--CyclePat 07:02, 9 January 2007 (UTC)
Yes - that is the legal term. Are you confusing "Admistration" v "administration"? The version with a capital A arises if someone dies intestate (no will or no legally valid will). There is a legal process to decide who gets the assets. --Concrete Cowboy 13:15, 9 January 2007 (UTC)
Wow! That's really interesting. But I can't seem to find a credible source for the words you are talking about.
1 - Admistration (as you spelt it on January 9th), in my search could be found in 7 online books from NetLibrary. (None deal specifically with Will or Estate) However, the first one is on p.342-343 of Oil Politics: A Modern History of Petroleum. The digitized version however is diferent from the adobe recognized text as this quote will demonstrate: "But for the time being, in early 2001, US ef[forts] were confined, first, to malilng[making] clear to Iraq, by renewed air attacks on mrlitary[military] installations on the ground, that the new Admistration [Administration] would... than the previous one; and, second, to seelung a revamping sanctions to hurt the government more and the people less." (Parra, Fransico 342-343). My inference is that that the mistake is within the digitizing process and that the word doesn’t really exist in these books.
  • Similarly Sams Teach Yourself J2EE in 21 Days allegedly has the term Admistration but when you go to page 54 it is actual "Asadmin"
Furthermore, Meriam-Webster Online[1] and the Online Etymology Dictionary[2] have no definitions for Admistration.
2 - Adminstration (as you spelt it in on January 8th), in my search appears in 85 books. None deal specifically with Wills or Estate. However, there is a book that deals with law of evidence… and ironically it appears to be my specialty (as per the probative value). ‘’ Beyond Reasonable Doubt and Probable Cause: Historical Perspectives On the Anglo-American Law of Evidence‘’ on page 268, which is the notes section states:
“90. Trial of Lyon (1799) for seditious libel, reprinted in Francis Wharton, State Trials of the United States during the Adminstrations of Washington and Adams (Philadelphia, 1849), 333, 336”
Further investigation into the endnote brings us to "Chapter 1, The "Satisfied Conscience" Test and Casuistry[sic], The cases…" or page 24 and states:
“The beyond reasonable doubt standard also appears in a number of U.S. trials around the turn of the century. The 1798 trial of Matthew Lyon for seditious libel in the Circuit Court for the Vermont District indicates that the standard was being applied early in the history of the new nation. The judge informed the jury, "you must be satisfied beyond all reasonable substantial doubt that hypothesis of innocence is unsustainable."”
Nevertheless, Meriam-Webster Online has no definition for Adminstration and furthermore suggests the definition administration, administrations and administrator. Finally, Online Etymology Dictionary has nothing for Adminstration.[ http://www.etymonline.com/index.php?search=Adminstration&searchmode=none]
3 - Administration (as I've spelt it) can be found practically everywhere. So I've limited the search for "Administration of Estate" and found 104 books on NetLibrary. For example, “Dictionary of Legal Terms: A Simplified Guide to the Language of Law” by Gifis, Steven H. , stipulates on p.274:
”LETTERS OF ADMINISTRATION: document issued by a probate court appointing the administrator or ‘’’administratrix’’’[Sic] of the estate of a decedent. If the decedent left a will naming a particular executor or executrix, the corresponding term for the court document is LETTERS TESTAMENTARY. If the decedent left a will but failed to name an executor or the named executor of a will cannot or refuses to serve, the document is termed LETTERS OF ADMINISTRATION CTA. CTA stands for the Latin CUM TESTAMENTO ANNEXO and means "with the will annexed." If a previous administrator or executor fails to complete the administration of the estate the document is called LETTERS OF ADMINISTRATION DBN. DBN stands for the Latin DE BONIS NON and means "goods not administered." Modern usage has favored the term SUCCESSOR ADMINISTRATOR.”
Furthermore this dictionary also references the term LETTERS TESTAMENTARY towards this afformentioned letters of administration.
Other book titles include: “The Complete Idiot's Guide to Wills and Estates”, wich stipulates that “During estate administration (estate's fiduciary tax return) Some estates may have to file federal estate tax returns and state death tax returns.” Or “Mind and Hand: The Birth of MIT”, and “Keeping the Faith: A Cultural History of the U.S. Supreme Court” by Semonche, which states on page 310 “Confronting an Iowa law that gave preference to men in selecting administrators of decedents' estates, they unanimously struck down the preference. Administrative convenience, the Court said, cannot justify the making of "the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment."15” or page 325, “The justices never determined that illegitimacy was a suspect classification and at times recognized a legitimate governmental interest in the orderly administration of estates, but the thrust of the decisions was in the direction of removing the law's reflection of the social opprobrium of illegitimacy.” And finally the most commonly book “CliffsNotes Planning Your Retirement” appears to be the simplest most logical stating that “An attorney who is qualified to practice law in your state knows the laws of inheritance, the system of estate administration, and the proper language of the will.”
We have a bigger issue here. Most of the other books deal with administration of business, real estate, financial planning, etc… (and don’t forget this is a limited search because we added the <of estate>). In fact there are 4775 books with just Administration ranging from themes and title like public management, policing sexual assault, feminism, Criminal Justice, and even Multimedia: Drug Administration by Inhalation: Merck Manual Home Edition. The problem is deeply routed in choosing the proper terminology and having the correct spelling. What term is of larger popularity and abiding by wiki policy. If in fact what you say is true I couldn't find a reliable source for referencing. Could you please send me your references? Thank you! --CyclePat 16:00, 9 January 2007 (UTC)


Further to my research, since I only quote one law book that was created by one author, I decide to check the Oxford online legal dictionary. I still haven't found the terms you mentioned. However, "de bonis non administratis" is a Lating word that makes reference to the letter of administration for an estate or will.[1]
In turn, as I mentioned above, but I will restate, a Letters of administration is an "Authority granted by the court to a specified person to act as an administrator of a deceased person's estate when the deceased dies intestate (Non-Contentious Probate Rules 22).[2]
I think we should concentrate perhaps on terms like "ad colligenda bona [Latin]To collect the goods. The court may grant letters of administration ad colligenda bona to any person to deal with specified property in an estate when that property might be endangered by delay."[3]
Ok, so I mis-spelt it. I'll move it. More to the point, I just unpicked the disparate components a really messy article and pasted this one verbatim. Looking back through the history of Administration (which has been MOVEd to and is now at Administration (business), the person who contributed this material was an anon editor. I have no expertise whatever in this topic, which is why I invited editors from the US-biased probate article. If I may, I will make my excuses and leave! --Concrete Cowboy 18:00, 9 January 2007 (UTC)
I am just folliwing through with everything I do. Quality is sometimes better than quantity. On that note however sometimes the right person can come along and have a good quality comment... or on the other hand they can have a good quality contribution by doing research. Our levels of contributions are somewhat different however we are trying our best. Your global overview and insite into other subjects helped me for example find some interesting sources that we can now add or use in many articles. I hope the information didn't scare you away but instead provided further incite into the real work that needs to be done, not only for this article but most articles on wikipedia. Of course I mean that in the most coloquial (however that is spelt) of ways. Please accept my appology and humble warm welcome to stay and help out. I believe the best way to build something is to become more knowlegeable (specially if you have the time) and to analyse every aspect. --CyclePat 04:42, 10 January 2007 (UTC)
Please do! (No offence taken - I certainly didn't intend to create that impression). All I'm saying is that I'm an "accidental editor" on this one - I created it only because I had to, while sorting out the messy article that was Administration. But I created it by copy/paste (since only one aspect of it can be MOVEd) and otherwise I know nothing about it. None of it is my original work. I really don't believe in editing articles that I don't at least know enough to know what I don't know! I'm very happy to leave it to those who do. --Concrete Cowboy 13:16, 10 January 2007 (UTC)
In Talk:Estate (law) I suggested that a better article title would be "Decedent's Estates" which would differentiate the administration of a decedent's estate from the administration of the estate of a minor, or the administration of the estate of an incompetent or incapacitated person, or the administration of a bankrupt's estate, and would combine Probate (which in the US really refers-technically speaking-only to the proof of the validity of a will) and Administration of an estate on death (which is otherwise the more generic concept, but a longer title than is needed, IMO). Evansdb 12:33, 11 January 2007 (UTC)
It is certainly too long, but anything shorter needs to be precise (and international - I've never seen "decedent" before). Note also that (at present) it is about UK law so that needs to be internationised too. So what is generalised concept called? You are certainly right about the other kinds of Administration - so how about Administration (law) and have sections on the different types of legal Administration? I'm way out of my depth here! --Concrete Cowboy 18:00, 11 January 2007 (UTC)

[edit] References

  1. ^ "de bonis non administratis" Oxford Dictionary of Law. Ed. Elizabeth A. Martin and Jonathan Law. Oxford University Press, 2006. Oxford Reference Online. Oxford University Press. University of Ottawa. 9 January 2007 <http://proxy.bib.uottawa.ca:2378/views/ENTRY.html?subview=Main&entry=t49.e1023>
  2. ^ "letters of administration" Oxford Dictionary of Law. Ed. Elizabeth A. Martin and Jonathan Law. Oxford University Press, 2006. Oxford Reference Online. Oxford University Press. University of Ottawa. 9 January 2007 <http://proxy.bib.uottawa.ca:2378/views/ENTRY.html?subview=Main&entry=t49.e2245>
  3. ^ "ad colligenda bona" Oxford Dictionary of Law. Ed. Elizabeth A. Martin and Jonathan Law. Oxford University Press, 2006. Oxford Reference Online. Oxford University Press. University of Ottawa. 9 January 2007 <http://proxy.bib.uottawa.ca:2378/views/ENTRY.html?subview=Main&entry=t49.e81>

--CyclePat 16:39, 9 January 2007 (UTC)

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