The Columbarium: Medieval Times (not the fun kind)
The Columbarium is a free, weekly newsletter where the history of death and dying meets practical advice about the same. Enjoy this issue from the archive—and if you like it, consider signing up!
Someday your parents are going to die, and either they will or won’t leave anything behind, but it doesn’t matter—you’ll still have to deal with probate court. Everyone does (unless your parents had a perfectly buttoned-up trust), but no one tells you what any of it means or how to navigate it.
I can’t tell you what it means or how to navigate it in this brief newsletter—though I can link you to some relevant sections on the website.
I can, however, tell you where the nuisance of probate court came from in the first place: William the Conqueror.
Okay, not literally. But our modern American estate law is derived from English Common Law, which can be traced back to the Norman Conquest of 1066 and our good friend Will. Two big changes happened after he put himself in charge of merrie olde England:
Ecclesiastical (a.k.a. church) courts became separated from state courts.
The introduction of feudalism meant that the king ultimately owned all land. If someone died without heirs, their land would revert back to the king. (A gross simplification, but you get the idea.)
Land was worth a lot of money, so state courts handled that. But personal property was worth much less—and at the time, it was common practice to leave most if not all of your personal belongings to the church in a will.
So Ecclesiastical courts had jurisdiction over probating people’s wills (the verb “probate” simply means “to prove a will”) and figuring out what should happen to the property if someone died intestate—that is to say, without a will. Chancery courts stepped in if there was a conflict that bridged the ecclesiastical/state divide like fighting heirs or a creditor looking for his due.
Church power waned eventually, and state courts took over the probate process in England—but not officially until 1857!! We had photography by then! Railroads! Not quite the lightbulb, but almost!
As for the United States, probate was generally handled by state courts set up specifically for that purpose, even in the colonial period. But since those courts were derived from English Common Law, they still followed the processes originally put in place by the ecclesiastical courts in England.
So if you find probate court as obnoxious as I do, blame William the Conqueror—or William the Bastard, as I prefer to call him.
Or you could just hire an estate attorney. It might be expensive, but it’ll make the whole thing a lot easier.
Source: Eugene A. Haertle, “The History of the Probate Court,” Marquette Law Review (1962)