The WAY to WOW Shows
Brief History of Probate
June 3, 2024
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[0:00] to trust and Estates weekly I'm your host Kevin bemel and we're here every Monday at 10:00 a.m. Pacific time that's 1 pm on the east coast of course for those of you on the East Coast you already know that and we talk about all things related to probate trusts Estates both from the standpoint of planning one's estate or helping people plan their estate to the administration of of a trust or or a probate and and how all of those things work so today I'm going to um indulge a little bit and talk um briefly about the

[0:38] history of of probate I think it's um a good idea to know how did we get to um where we are today and and why does the the system work the way that it works so I I did um this week I did put together a a um a PowerPoint which I haven't done for a while and um we're gonna jump right into it so this is like I said a brief history of of probate so um as as is always the case on the way to wow shows they all revolve around the

[1:13] concept of the three pillars of attainment and uh on on this show in particular we're off we're dealing uh usually in the finances Realm of the Pursuits pillar but of course it gets into relationships as well um and and oftentimes our identity as we're figuring out what kind of Legacy do we want to leave behind so the history of probate goes back thousands of years into ancient Egypt um and we we see there that um back in in the time of of

[1:51] the pyramids if you will um even back then they had written Wills now they were written on papyrus not on paper which uh wasn't around yet um but nonetheless it was the you know the Egyptian Society was a a very Advanced Society I mean when you consider the engineering marvels of of the uh the pyramids um I was watching a video about this not too long ago and these in these multi- Anchorage sites are so flat that you know the difference

[2:27] in level is is I think less than 3 cm that's you know roughly 1.2 in I mean that's that's an amazing grading um you know especially for such a huge site so we're talking about a a sophisticated Society um the uh library at Alexandria was one of was probably the largest repository of information in its time and so it shouldn't be any surprise that this idea of someone creating a written document that spelled out um to whom his

[3:05] property would go upon his death um goes back all the way to that time so um so you you can see how old is now for those of you who are familiar with the Bible of course there are um biblical rules about um inheritance um those don't necessarily relate to uh those don't really relate to probate um they deal more with um who is entitled to get a deedan property so they deal more with heirs um but um you

[3:40] know there were issues like that um floating around both in the what's sometimes called the Mosaic code the the rules that are in the uh Hebrew Bible as well as the code of hamurabi so um so there is you know thousands of years of History um behind um probates and and the process of Distributing assets upon the death of the owner so um in in ancient Rome too um the the concept concept of Wills existed

[4:15] you had a a testamentum okay that that that is uh Latin for a will and and and you you've undoubtedly heard the term last will in Testament so you can see where the term Testament itself comes from and then you had the famili Emptor now this is not Caveat Emptor completely different uh topic but famili Emptor is what we would call in English an Executor so you can see it's it's um it's the representative of the family basically again this is

[4:50] it's it's in Latin and so you had um in the testamentum U the appointment of the familier Emptor um and that has you know Rome we're again we're dating back now you know around 2500 years or so um and uh um you you can see that U that this concept of having someone appointed to administrate uh the will was is is also a millennial a millennia old uh practice going back all the way to that time so

[5:27] so these these Concepts were bouncing around for quite a while um as we move into the Middle Ages and into the feudal system so um the the concept of primogen primogenitor uh came up um and you saw this now this is this is different than the biblical concept so according to the Old Testament or the Hebrew Bible if uh a man had let's say four four Sons okay and and under the biblical system um if

[6:04] a man had Sons uh daughters did not inherit so the oldest son the first son was entitled to a double share of the estate so let's say he had an estate that included a thousand sheep okay so in for now it wouldn't be divided up 250 among each of his four Sons instead the first son would get a double share so he would get 400 and the other three sons would get 200 each okay but

[6:40] you can see that all of the sons did inherit now under the system known as primogenitor the oldest son the firstborn son hence the word Primo right first he inherited the entirety of his father's estate okay now what happened as a result of this is um a a a sometimes a difficult situation so let's take that same situation where a man had four Sons okay now if you were the first son you were

[7:16] in the catb bird seat right and you were destined to inherit your father's entire estate now by the way if he had let's let's let's deal in England if he had a title let's say he was a duke or maybe he was an Earl so that son would also inherit the title okay and the other Sons would get nothing now if you were number two son well you probably are going to hang out pretty close to home just in case um

[7:53] um one of my friends is watching and and she says um she's glad to know that she and her younger brother will inherit the same number of sheep yes indeed so um under this under the the the the feudal system so the second brother is going to stay um pretty close to home because if the firstborn uh son dies so he's next in line so he's going to end up inheriting the entire estate okay so he's going to hang out close to the older brother now you might note

[8:29] that he has he has kind of an incentive to you know do away with his older brother and um while I can't cite a specific case um it it it is undoubtedly the case that uh at times um you know a younger brother a second brother you know did away with his older brother in order to um you know in order to get the title in the estate now if you're number three or number four brother well so you know what are the chances that two of your brothers are going to die um or in the case of the fourth brother you know three of them are going to die so you

[9:05] know you're in a situation where you're either going to end up basically um having to you know rely on your your oldest brother to support you or you've got to go find some some other way of making a living and oftentimes um and I've spoken about this a little bit before but oftentimes what these third fourth Etc brothers would do is they would um they would either get a career and usually that in especially in the Middle Ages that meant either

[9:40] joining the clergy or it meant joining the military becoming an army or a Navy officer okay and in that way they could um gain respectability by by the nature of the work that they did because they weren't going to become a Tradesman espe esally if they were a you know a member of the aristocracy um but by becoming a member of the clergy or or an officer in the armed forces so they had a position in society and then um typically their

[10:15] brother would um would give them an allowance in order that they could maintain um their position you know similar to to a member of the family but since they were doing something um worthwhile with their lives so it was a good idea to do that um another thing that happened is these third and fourth brothers would look to marry well as the term went um so if a man did not have um Sons so then his daughter um would would inherit that's that's true both excuse

[10:52] me bib excuse me both that's true both biblically so according to again the Mosaic code if a man had no Sons then his daughter uh his daughters would um inherit okay um so you might have a situation where um you know a young woman um inherited her father's estate okay and so then this third or fourth son would seek to marry her because in doing so typically he would gain control of the money okay um even though it

[11:27] didn't legal it wasn't legally his but he would gain the right essentially to manage his wife's estate okay it was especially in the Middle Ages extremely unusual for a for a woman to manage her own property um especially a young woman um first of all typically women were not taught what they needed to know to do that and second um oftentimes they were not given much of any kind of education at all and and third it was you know socially frowned upon if you will for a

[12:02] woman to be in that position and then and that that continued for for centuries okay so you know you you can imagine that um if this uh third or fourth or Etc son was unscrupulous um he could you know steal um money from um or steal the estate from his wife and indeed um that that did happen now we're we're talking about the um the English basis for for probate law um in in uh in this in this Spanish

[12:39] World um this the system was different um because they were more concerned about that issue um so throughout the Middle Ages um you know you you saw things happening according to the feudal system now um eventually the ecclesiastical courts took over um the the the um probating of Estates okay so ecclesiastical courts were the courts connected to the church okay and they would oversee the probate of an estate which included

[13:15] first of all the validation of Wills so really the first step in in the probate of an estate and this is true even today is the validation of the will meaning uh determin if indeed a will is valid so for example I handled a a case um um not too long ago where um a person died in testate meaning or he he appeared to have died in testate and then a document was found um and there was an extensive

[13:51] discussion as to whether this document constituted a a will in in particular what's known as a holographic will so in this particular case the will had been word processed okay and because of that and and by and and by the way with what what was found was a copy of a word processed document it may have even been a typewritten document um but in any in any event it was not handwritten okay and so a determination was made that this did not qualify as a

[14:26] valid will so um although there was discussions about trying to get it validated um in in the end um it was it was certain the court would have rejected it um and so um the intestate um deceased uh was was essentially the the direction that the probate took okay and then the other thing that ecclesiastical courts did was they they oversaw the appointment of Executives um and administrators now typically a will would appoint an executive that's the

[15:02] person in the will appointed to administrate the estate is known as an executive now back then if it had been a woman she would have been known as an executrix okay they they distinguished between um the Sexes of of the the the person appointed now if for some reason the person um designated as the executive in the will um could not serve let's say maybe he had pred deceased um the deant or maybe he was incapacitated maybe he was mentally incapacitated okay

[15:37] so now he's not fit to act as the executive in which case the court would appoint an administrator okay and the um heirs to the estate might put forward someone to be the administrator or the court might choose someone they might choose a lawyer they might choose you know member of the CL it really it really depended on on you know what the ecclesiastical court judge um thought would be the in the best interest of the estate now you may be wondering well wait why did why

[16:12] did uh probate end up in the ecclesiastical courts and a lot of the reason is because as I was mentioning before um the the Old Testament especially has a has you know things to say about who inher its property and so some of the source of probate law comes from the Bible that's number one and number two um probate um was always well I don't say want to say always it was typically seen as what's called a matter of equity so in the English legal system

[16:50] there were essentially two different matters that would um that that over which um people to dispute what we called matters of Law and matters of equity so matters of law were some also could sometimes called a Tor it's when two people are disagreeing let's say um for example um one of your horses got loose and it it it trampled your neighbor's uh crop and destroyed part of the crop so the solution to that would typically

[17:26] be a payment um by the OWN owner of the horse to the owner of the crops that were damaged that's a matter at law but sometimes money won't solve a situation and so you had what you need what was called Equitable relief okay so um uh trying to think of an example of a AA case of equity um I had one in mind and now all of a sudden it went away um okay so so let's say that um um somebody is um slandering

[18:06] you okay now um You may not have really lost any you know money as a result of being slandered however there's it's it's surely the case that being slandered is not a good thing and so you would apply for equity and and in this case you you would apply to have the person um uh speaking the slander uh prohibited from doing so and perhaps um having to issue some kind of apology or some kind of recantation of of what the person said

[18:44] that would be a matter of equity now in in um in the Middle Ages um matters of law were overseen in courts matters of equity were overseen essentially by the aristocracy um the Lord Who had who had ownership over a particular portion of land okay and so if if one was suing at Equity one would essentially go to the Lord and say you know your honor or your your grace if he was a a duke or whatever um my Lord you know please you know stop this

[19:21] person from doing this thing okay now uh probate even though it involved money it didn't involve damages and so probate was seen as a matter of equity um and and so um although originally during feudal times the Lord of of of the of the land would oversee the cases as they got more technical they were transferred to the ecclesiastical courts as as being a more appropriate venue for dealing with the complexity

[19:59] okay so now we go um into more modern times so um in in England during the 19th century in fact in 1857 the probate court was formally established okay so you can see that's really only about 175 years ago did we have separate courts in which probate um what were in which probates were heard and and the reason separate probate a separate probate court was established was because by the mid 19th century

[20:37] probates had gotten so complex the amount of money involved oftentimes was so large that it really took Specialists to deal with the various issues okay and and and the English legal system recognized that and so they established those those those separate courts and that continues until the present day now in colonial America much of our law especially when it comes to the process of probate is based on English law however each colony

[21:16] set up their own uh courts and and so there was there was never in the United States a a national probate court so um unless a probate for some reason happens to be dealing with some kind of strange issue that that is is happening at a federal level um prob probate never touches a federal court in the United States it all happens within the courts of the individual 50 states okay and and

[21:52] and so just like um in the colonies where there were distinctions on how things were handled um by Colony that also persists until this day and so for example um if you were to uh um probate um sorry um anyway so um you will see these these these variations um in in the way um laws are handled in fact we saw if you watched the show last week you saw that um

[22:29] different states have um different schedules of compensation for executiv administrators personal representatives and in fact they have they use different names for that that person so um here in California we call them administrators in other jurisdictions it's called a personal representative um and and so even just a small thing like that um um you'll you'll find differences Okay so um now you know you you can have a situation where a decedent has property

[23:05] in more than one state and and if that is the case um in fact a probate may need to be filed in um more than one state in order to make sure that everything is handled correctly okay and so then that takes us up to uh current times so the 20th and 21st centuries okay in the United States as as I was mentioning just a moment before the law varies by state okay um and I just gave you an example of that now um in order

[23:41] to bring more greater um uniformity to the probate process the uniform probate code was introduced in 1969 okay and and it was basically a number of um people got together from the various States and they they essentially hammered out um a a a a probate code which is essentially a set of laws about how probates will be handled um that that was intended to be

[24:16] adopted by each of the 50 states okay it was not let me be clear about this it was not intended that the federal government would impose this code on the states because the federal government constitutionally does not have the authority to do that okay um and since 1969 I think of roughly 2third of the states have adopted some or all of the uniform probate code okay but by no means all now is this a good thing bad thing I mean you know it's a thing right

[24:55] um you know for for probate practitioners like myself um it would certainly make it easier I think that you know if all 50 states adopted the uniform probate code but the fact of the matter is different states have different issues and and so it's probably not practical for it to literally be adopted um exactly the same by all 50 states okay so so for example here in California one of our biggest issues is water things like reparan rights and all of that in fact um if you look at us if

[25:32] you look at a set of books that represent the laws of California the um water code um is is contained in about as many books as I think the civil code is it shows you um how how important that issue is um here in California right and so inevitably when dealing with property in this case real estate um because water is such an important issue here in California it's you know it it at times is going to have an outsized impact potentially at least on a probate um whereas in another state

[26:09] where you know water rights may not be as important um so then it wouldn't and so then there doesn't need to be as much um uh you know in the in the you know in Probate to or dealing with it in Probate is is not going to be as as big a deal Okay so um I I think there will always be some variations and as well here in California even a small state is likely to be you know hundreds of thousands of dollars whereas um in a in a Midwestern State where property values are not as

[26:44] high so so then um a small state could very well be truly a small state um and so um the fee structures probably need to be different because the reality is while the numbers are bigger here in California the amount of work isn't necessarily greater um the liability for an administrator or an executive may be higher because of the higher values um but the amount of work is not necessarily and so um that's why um you know kind of overall fees appear to be

[27:21] lower in California on a sort of you know like on a million dollar estate here in Cali the fee is is lower than it would be in a state like Alabama in fact you know I refer you again to last week's show where we talked about fees for administrating a probate okay um and so I think there will always be variations um in order to accommodate the differences state by state so another advance that we've seen um just in the last I think you know couple couple three decades couple of decades

[27:56] probably is things like electronic filing systems right that's an internet um Innovation and so now um many times you know you don't have to send someone down to the court to file a document it can be done online and in fact I know here in in California you can access um most if not all documents online in some cases there's a fee for doing so um um but in any event um the ability to file documents online um has has made the process of of probate much easier and at

[28:33] least in theory less expensive because you're not having to pay for Attorney Services to you know take documents down to the court and all all that kind of stuff so um there you know that that's probably the most recent change um that that that we've seen in in the probate process and so you know there there you have it you you you know a brief history of of the pro process just to give you some background so you can appreciate how all of this works we'll just go through the last one so if you have any questions um these links will be in the

[29:08] show notes after the the show posts so feel free to um send me uh you know post post a comment or a question or a criticism for that matter um or if it's something private you can always uh send me an email and if it's something that I have uh you know knowledge of happy to respond if not I I will you know suggest that you uh contact the appropriate professional okay and then we just wrap up here I think we just got the legal stuff there you go okay we'll take this down and so that

[29:43] that's our that's a show for today and um hope hope you found it interesting hope you found it useful um to have that background and um by the way I I haven't mentioned this in in a while but um if you are not a subscriber to the show maybe you're watching it for the first time uh please do consider subscribing um just just click on that uh subscriber link right below the video and and joining uh you know the um the rest of the subscribers we have and that way you'll never miss an upcoming episode of any of my shows which includes tomorrow at 10: amm Pacific Time Business lessons

[30:20] from the military we're going to be talking about speaking truth to power this is a subject near and dear to my part and you'll find out why tomorrow and then on Wednesday at 10:00 a.m. Pacific time is people making money and I will tell you what the topic is because I forgot it it is ah yes networking to get a job so um for those of you like me who read The Wall Street Journal they had a big article about this on Saturday in in in the weekend journal and I'm I'm looking at it and

[30:57] laughing at and laughing about it so I want to I want to talk about this issue because um recently I've been talking to quite a few service members who are transitioning to civilian life and and I think this is this is the most important topic uh for anyone who is job hunting is is uh this this this idea of of of networking so we're going to talk about that on Wednesday and then of course we'll be back a week from today with the next episode of trust and Estates weekly so thanks very much for tuning in hope

[31:33] you enjoyed the show wishing you a wonderful rest of the day and signing off as I always do Marie you're my bell all