THE HISTORICAL ORIGIN OF PROBATE
We need to look to England for the historical beginning of probate. Always from the beginning of English jurisprudence the power to bequeath one’s personal property by will was allowed. Depending upon the family of the decedent, the will may not control the disposition of all of the decedent’s personal property. Usually a man’s goods were divided three ways. His wife received one share, his children together received one share, and his will disposed of the remaining share.
If the decedent only left a wife but no children, the wife took one-half. If the decedent left neither wife nor children, then the will controlled.
When someone died without a will he was said to have died intestate. The law provided if a man died intestate then the king was entitled to seize the personal property as parens patriae. This is Latin meaning the parent of his or her country. Today this is the fundamental doctrine that grants the duty of the state to be the guardian of unwanted children, the mentally ill, the incompetent, the elderly and disabled persons who are unable to care for themselves. This fundamental doctrine is what gives family law judges the duty to change custody and make decisions in the best interest of the child. It gives the state the authority to intervene in cases of neglect and abuse for any vulnerable child or adult.
In England this parens patriae function was taken over the court of equity, or chancery court. In addition to supervising the vulnerable people, it also supervised trusts, trustees and fiduciary persons.
Before 1857 the administration of estates of decedents which were intestate, or without a will, were turned over to the church. The church was not accountable and abuses occurred. The parliament passed a law that the creditors of the decedent must be paid. And, another law that required the appointment of the nearest and most lawful friends of the deceased to administer his good. These administrators were regarded the same as an executor appointed under a will. More and more authority was granted to the ecclesiastical courts over the estates of decedents. The parliament in 1857 established the court of probate.
The English colonies in America never adopted the ecclesiastical court system. Instead a probate system was adopted. Massachusetts in 1691 was the first colony to pass by law and adopt a probate system of jurisprudence. The county court handled all matters including the probate of wills and administration of estates. By 1858 a probate court was established. Other colonies followed the example of Massachusetts.
When Oklahoma was a territory the Organic Act passed by Congress in 1890 became the law of Oklahoma Territory. It adopted by reference the law from the state of Nebraska. One chapter of the law of Nebraska was that governing probate and decedents. A probate court was adopted. Later in 1890, the Oklahoma Territory legislature adopted a comprehensive set of statutes taking the place of the law of Nebraska. These statutes came from Dakota. Dakota took its probate law from California.
Indian Territory was governed by different laws. Indian Territory was governed by the law of Arkansas and the United States Court sitting in Indian Territory. These laws ruled over the estates of decedents.
When Oklahoma became a state in 1906, the laws in force in Oklahoma Territory became the laws for the state of Oklahoma.
Today the probate courts work to collect the assets of a decedent, to pay any taxes owing, to satisfy the creditors, to determine the new owners of the remaining property. This is to be done with the goal of preventing fraud and abuse by the supervision of the probate court.
If you need an experienced attorney to help you with your will, trust, or the probate of administration of an estate of a family member call Brent Coldiron (405) 478-5655.