Probable cause is a level of reasonable belief based on facts that can be articulated that is required to sue a person in civil court or to arrest and prosecute a person in criminal cour
Trang 1citizen of the United States.” The Privileges and Immunities Clause guaranteed the right of a citizen to“become a citizen of any State of the Union.” It did not permit the states to “select their citizens.” In Hillside Dairy Inc v Lyons, 539 U.S 59, 123 S.Ct 2142, 156 L.Ed.2d 54 (2003), the court used the Privileges and Immunities Clause in part to rule as against a California law that favored state milk producers over out-of-state producers Even though the California law did not explicitly draw a distinction based on citizenship or residence, if it had the practical effect of discriminating against a nonresident, there was a legitimate privileges and immunities claim that the plaintiffs could raise
FURTHER READINGS Barron, Jerome, and Dienes, Thomas 2006 First Amendment Law in a Nutshell 6th ed St Paul, Minn.: Thomson West.
Flack, Horace Edgar 2003 The Adoption of the Fourteenth Amendment Birmingham, Ala.: Palladium Press.
Noonan, John T., Jr 2002 Narrowing the Nation’s Power:
The Supreme Court Sides with the States Berkeley: Univ.
of California Press.
CROSS REFERENCE Equal Protection.
PRIVITY
A close, direct, or successive relationship; having a mutual interest or right
Privity refers to a connection or bond between parties to a particular transaction Privity
of contract is the relationship that exists between two or more parties to an agreement Privity of estate exists between a lessor and a lessee, and privity of possession is the relationship between parties in successive possession of real property
PRIVY One who has a direct, successive relationship to another individual; a coparticipant; one who has
an interest in a matter; private
Privy refers to a person in privity with another—that is, someone involved in a partic-ular transaction that results in a union, connec-tion, or direct relationship with another Privies
in blood are the heirs of an ancestor Privies in estate are people who succeed or receive an assignment of property, such as a grantor and
a grantee, lessor and lessee, or assignor and assignee
PRIVY COUNCIL The Privy Council is the British Crown’s private council It is composed of more than 300 members, including cabinet members, distin-guished scholars, judges, and legislators Once a powerful body, it has lost most of the judicial and political functions it exercised since the middle of the seventeenth century and has largely been replaced by the Cabinet
The Privy Council derived from the King’s Council, which was created during the Middle Ages In 1540, the Privy Council came into being
as a small executive committee that advised the king and administered the government It advised the sovereign on affairs of state and the exercise of the royal prerogative It implemented its power through royal proclamations, orders, instructions, and informal letters, and also by giving directions to, and receiving reports from, the judges who traveled the circuits, hearing cases in cities and towns, twice a year It concerned itself with public order and security, the economy, public works, public authorities and corporations, local government, Ireland, the Channel Islands, the colonies, and foreign affairs The inner circle of advisers in the Privy Council met in the royal chamber or cabinet and was therefore called the Cabinet Council In the eighteenth century, the cabinet became the council for the prime minister, the leader of Parliament The United States adopted the cabinet idea, though its legal status is not identified in the Constitution Cabinet members are presidential advisers who serve as executive branch department heads
The power of the Privy Council disappeared between 1645 and 1660, during the English Civil War and the government of Oliver Cromwell It never recovered its former posi-tion Long policy debates shifted to Parliament, and important executive decisions went to committees In modern days, members of the Privy Council rarely meet as a group, delegating their work to committees
The Lord President of the council, who is a member of the cabinet, is the director of the Privy Council Office The most important committee is the Judicial Committee of the Privy Council, which comprises all members of the council who have held high judicial office Usually, however, three to five Lords of Appeal sit to hear appeals from the United Kingdom,
128 PRIVITY
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the Commonwealth The committee does not
give a judgment but prepares a report to the
sovereign, and its decision may be implemented
in an Order in Council The work of the
committee has diminished because it rarely
hears ecclesiastical appeals and because many
Commonwealth countries have abolished the
right of appeal
Throughout much of the eighteenth
cen-tury, the Privy Council in England exercised
VETO power over the laws of the colonial
assemblies of British North America JAMES
MADISON sought to restore this veto power at
the Constitutional Convention by empowering
Congress to negate or veto state laws deemed to
be inconsistent with national interests
Madi-son’s proposal was framed broadly enough to
empower Congress to veto state laws on the
basis of policy differences, and not solely on the
basis of unconstitutionality In the end, the
convention rejected the proposed national veto
on state laws, erecting instead a system in which
theSUPREME COURTwas responsible for
consider-ing whether state laws conflicted with supreme
federal law
FURTHER READINGS
Lehrfreund, Saul 1999 “The Death Penalty and the
Continuing Role of the Privy Council ” New Law
Journal (August 20).
Owen, D.H.O 1992 “The Privy Council and the
Profes-sional Foul ” Medico-Legal Journal 60 (spring).
CROSS REFERENCE
Curia Regis.
PRIZE
Anything offered as a reward for a contest It is
distinguished from a bet or wager in that it is
known before the event who is to give either the
premium or the prize, and there is but one
operation until the accomplishment of the act,
thing, or purpose for which it is offered In time of
war, an enemy vessel or a ship captured at sea by a
belligerent power
The fair market value of a prize or award
is generally includible in gross income Certain
exceptions are provided where the prize or award
is made in recognition of religious, charitable,
scientific, educational, artistic, literary, or civic
achievement providing certain other
require-ments are met
PRIZE COURTS Tribunals with jurisdiction to decide disputes involving captures made upon the high seas during times of war and to declare the captured property as a “prize” if it is lawfully subject to that sentence Under federal law, seized aircraft can also be subject to the jurisdiction of these courts
In England,ADMIRALTY courts possess juris-diction as prize courts, in addition to their customary admiralty jurisdiction The judge of
an admiralty court receives a special commis-sion in time of war to empower him or her to conduct such proceedings
At the turn of the twentieth century, a proposed international prize court was the subject of considerable international negotia-tion, but ultimately it never began, because the convention that would have created it was never ratified, and no such court has existed since then
In the United States, federal district courts have ORIGINAL JURISDICTION to try prize cases, under 10 U.S.C § 7651-7681, but no such cases have been heard in them since the 1950s The law followed in U.S prize courts is U.S law, and appeals go to the circuit courts and then, potentially, to the U.S Supreme Court
FURTHER READINGS Bourguignon, Henry J 1977 The First Federal Court: The Federal Appellate Prize Court of the American Revolution, 1775–1787 Memoirs of the American Philosophical Society, vol 122 Philadelphia: American Philosophical Society.
Joe and Sue Kainz display a lottery prize check in the amount
of $181.5 million Lottery winners do not receive the full amount of their prizes, because such money is taxed as income.
REUTERS NEWMEDIA INC./CORBIS.
PRIZE COURTS 129
Trang 3Wilson, George Grafton, and George Fox Tucker 1910.
International Law, 5th ed New York: Silver, Burdett &
Company.
CROSS REFERENCE Admiralty and Maritime Law.
PRIZE LAW During times of war, belligerent states may attempt to interfere with maritime commerce to prevent ships from carrying goods that will aid the war effort of an opponent After ships are captured and brought to a friendly port, a local tribunal called aPRIZE COURT will determine the legality of the seizure, or the destruction of the vessel and cargo if the vessel cannot be sailed to a friendly port The body of customary INTERNATIONAL LAW and treaties that determines the appropriateness of such actions is referred to as prize law
Prize law has not been completely consistent
in its development because the tribunals that rule on the seizure of the vessel are national tribunals and may reflect the interests of the belligerent state in interdicting the enemy war effort The expanding scope of warfare and the concept of total war have also blurred the distinction between vessels subject to capture as
a prize of war and those that are exempt Some basic rules remain, however All vessels of an enemy state are subject to seizure at any time by
an opposing belligerent Warships may be sunk immediately, and private merchant vessels are
to be taken to a friendly port, if possible, for ADJUDICATION by a prize court A prize court examines DOCUMENTARY EVIDENCE to determine whether the seizure of a ship was the act of sovereign authority A neutral vessel on the high seas or in a belligerent’s territorial sea may be stopped and searched, if it is suspected of carryingCONTRABAND, and it may be condemned
as a prize of war if any is found Finally the right
of coastal fishing vessels of any state to be free from seizure while plying their trade is almost universally recognized
When movable property in the hands of the enemy is used or intended to be used for hostile purposes, and is captured by land forces, title to the property passes to the captors as soon they have firm possession
CROSS REFERENCE Admiralty and Maritime Law.
PRO [Latin, For; in respect of; on account of; in behalf of.]
PRO BONO Short for pro bono publico [Latin, For the public good] The designation given to the free legal work done by an attorney for indigent clients and religious, charitable, and other nonprofit entities
As members of a profession, lawyers are bound by their ethical rules to charge reason-able rates for their services and to serve the PUBLIC INTERESTby providing free legal service to indigent persons or to religious, charitable, or other nonprofit groups A lawyer’s free legal service to these types of clients is designated as pro bono service
Lawyers have always donated a portion of their time to pro bono work, but in the United States the demand for legal services from people who cannot afford to hire an attorney has grown since the 1960s Lawyers previously donated time
on an ad hoc basis The establishment of legal aid organizations to serve indigent persons in the 1960s changed the way attorneys obtained pro bono work Legal aid attorneys, who were unable
to satisfy all the legal needs of poor people, created programs to recruit private attorneys willing to donate some of their time These programs recruit attorneys and then train them
to handle common types of cases
The AMERICAN BAR ASSOCIATION (ABA) has become a national leader in the effort to enhance pro bono legal services The ABA Model Rule for Pro Bono Publico Service suggests that“a lawyer should aspire to render at least 50 hours of pro bono publico legal services per year In fulfilling this responsibility, the lawyer should: (a) provide
a substantial majority of the 50 hours of legal services without fee or expectation of fee to: (1) persons of limited means or (2) charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.” In addition, the ABA suggests that additional services should
be provided for a reduced fee or no fee to individuals, groups, or organizations working in some aspect of public interest law, such asCIVIL RIGHTS or civil liberties groups Many state bar associations have adopted this ABA model rule
as a requirement for their state’s lawyers
130 PRIZE LAW
Trang 4The ABA Center for Pro Bono assists ABA
members and the legal community in
develop-ing and supportdevelop-ing effective pro bono legal
services in civil matters as part of the
profes-sion’s effort to ensure access to LEGAL
REPRESEN-TATION and the justice system The center helps
create, design, and implement pro bono
pro-grams It sponsors an annual conference for bar
leaders, pro bono program managers, legal
service staff, and others involved in the delivery
of pro bono legal services to poor people
State and local bar associations also assist in
the creation and maintenance of pro bono
programs Despite these efforts, the need for
legal services currently outstrips the pro bono
services provided
FURTHER READINGS
American Bar Association American Bar Association Model
Rule 6.1: Voluntary Pro Bono Publico Service.
Coulter, Dolores M 2001 “The Pro Bono Priority.”
Michigan Bar Journal 80 (September).
Minnesota Rules of Court 1996 St Paul, Minn.: West.
PRO FORMA
As a matter of form or for the sake of form Used
to describe accounting, financial, and other
state-ments or conclusions based upon assumed or
anticipated facts
The phrase pro forma, in an appealable decree
or judgment, usually means that the decision was
rendered not on a conviction that it was right, but
merely to facilitate further proceedings
PRO HAC VICE
For this turn; for this one particular occasion For
example, an out-of-state lawyer may be admitted
to practice in a local jurisdiction for a particular
case only
PRO RATA
[Latin, Proportionately.] A phrase that describes
a division made according to a certain rate,
percentage, or share
In a BANKRUPTCY case, when the debtor is
insolvent, creditors generally agree to accept a
pro rata share of what is owed to them If the
debtor has any remaining funds, the money is
divided proportionately among the creditors,
according to the amount of the individual debts
A pro rata clause in an automobile insurance
policy provides that when an insured person has
other insurance policies covering the same type
of risk, the company issuing the policy with the pro rata clause will be liable only for a proportion of the loss represented by the ratio between its policy limit and the total limits of all the available insurance
PRO SE For one’s own behalf; in person Appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself or herself in court
Pro se representation, which can occur in criminal or civil actions, is potentially very risky inasmuch as such parties tend not to have legal educations and backgrounds and thus are usually at a considerable strategic disadvantage because they are unfamiliar with trial technique and legal procedure in general Moreover, they are very likely to miss issues for appeal Some pro se defendants begin with representation and then, for any number of reasons, dismiss their attorneys and take their defense entirely into their own hands
Pro se defendants are sometimes involved
in high-profile prosecutions One prominent example was John Allen Muhammad, known nationally as the“Beltway sniper,” who in 2002 was arrested in connection with a series of shootings, over a three-week period, in the national capital region that left ten people dead Eventually Judge LeRoy Millette granted Muhammad’s request to represent himself, and Muhammad began with his own opening statement and attempted to cross-examine several witnesses The original court-appointed lawyers remained present, and Muhammad soon reinstated them and ceased his pro se defense
In 2005 Muhammad was convicted of murder and received a death sentence; in November
2009 he was executed by lethal injection in Virginia On appeal, Muhammad’s attorneys argued that the pro se defense should not have been permitted and that Muhammad should have been allowed a competency hearing
PRO TANTO [Latin, For so much; for as much as one is able;
as far as it can go.] A term that refers to a partial payment made on a claim
In an EMINENT DOMAIN case, pro tanto des-cribes the partial payment made by the govern-ment for the taking of land This paygovern-ment is
PRO TANTO 131
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A pro tanto defense is a defendant’s counter-claim against the plaintiff for one-half the requested damages
PRO TEM [Latin, For the time being.] An abbreviation used for pro tempore, Latin for “temporary or provisional.”
A person who acts as a temporary substitute serves pro tem The term is often used to describe the acting head of a governing body, such as the president pro tem of the Senate, who presides over the Senate when the vice president
is unable to do so
PROBABLE CAUSE Probably cause refers to a level of reasonable belief which occurs when apparent facts discovered through logical inquiry lead a reasonably intelli-gent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a cause of action has accrued, justifying a civil lawsuit
Probable cause is a level of reasonable belief based on facts that can be articulated that is required to sue a person in civil court or to arrest and prosecute a person in criminal court
Before a person can be sued or arrested and prosecuted, the civil PLAINTIFF or police and PROSECUTOR must possess enough facts that would lead a reasonable person to believe that the claim or charge is true
The probable cause standard is more important in CRIMINAL LAW than it is in CIVIL LAWbecause in criminal law it is used as a basis for searching and arresting persons and depriv-ing them of their liberty Civil cases can deprive
a person of property, but they cannot deprive a person of liberty In civil court a plaintiff must possess probable cause to levy a claim against
a DEFENDANT If the plaintiff does not have probable cause for the claim, she may later face
a MALICIOUS PROSECUTION suit brought by the defendant Furthermore, lack of probable cause
to support a claim means that the plaintiff does not have sufficient evidence to support the claim, and the court will likely dismiss it
In the criminal arena probable cause is important in two respects First, police must
possess probable cause before they may search a person or a person’s property, and they must possess it before they may arrest a person Second, in most criminal cases, the court must find that probable cause exists to believe that the defendant committed the crime before the defendant may be prosecuted
There are some exceptions to these general rules Police may briefly detain and conduct a limited search of a person in a public place if they have a reasonable suspicion that the person has committed a crime Reasonable suspicion is
a level of belief that is less than probable cause Police possess reasonable suspicion if they have enough knowledge to lead a reasonably cautious person to believe that criminal activity is occurring and that the individual played some part in it Police may stop a citizen on the street based on a reasonably articulable suspicion that the citizen has been or is about to be engaged in criminal activity In such an instance, police do not need probable cause to stop the citizen In another instance, when police have a reason-able, articulable suspicion that a citizen is armed and dangerous, they may frisk the suspect by conducting an external patdown of the outer clothing The“stop-and-frisk” doctrine was first developed by the U.S.SUPREME COURTin Terry v Ohio, 392 U.S 1, 88 S Ct 1868; 20 L Ed 2d
889 (1968)
The requirement of probable cause for a SEARCH AND SEIZURE can be found in the FOURTH AMENDMENTto the U.S Constitution, which states, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched
All states have similar constitutional prohibi-tions against unreasonable searches and seizures The requirement of probable cause works
in tandem with the warrant requirement A warrant is a document that allows police to search a person, search a person’s property, or arrest a person A judicial magistrate or judge must approve and sign a warrant before officers may act on it To obtain a search or ARREST WARRANT, officers must present to the magistrate
or judge enough facts to constitute probable cause A warrant is not required for all searches and all arrests Courts have defined exceptions
132 PRO TEM
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without a warrant when obtaining a warrant
would be impractical
The courts have struggled to define instances
in which a warrant is required and other
instances when an officer can conduct a
warrant-less search To illustrate, assume that a police
officer has stopped a motor vehicle driver for a
traffic violation Under the U.S Supreme Court’s
decision in New York v Belton, 453 U.S 454, 101
S Ct 2860, 69 L Ed 2d 768 (1981), once the
officer made a lawful traffic stop, the officer could
also search the passenger compartment of the
vehicle without a warrant Despite the Court’s
effort to create a bright-line rule to reduce
confusion in traffic stop cases, the ruling was
criticized heavily in the years that followed In
2009, the Court overruled Belton in Arizona v
Gant, 556 U.S _, 129 S Ct 1710, 173 L Ed 2d
485 Under Gant, the officer must demonstrate
an actual and continuing threat to the officer’s
safety before conducting a warrantless search of
the vehicle The officer can also search the vehicle
if the search is necessary to preserve evidence
Probable cause is not equal to absolute
certainty That is, a police officer does not have
to be absolutely certain that criminal activity is
taking place to perform a search or make an
arrest Probable cause can exist even when there
is some doubt as to the person’s guilt Courts
take care to review the actions of police in the
context of everyday life, balancing the interests
of law enforcement against the interests of
personal liberty in determining whether
proba-ble cause existed for a search or arrest
Legislatures may maintain statutes relating
to probable cause Many such statutes declare
that a certain thing constitutes probable cause
to believe that a person has committed a
particular offense For example, under federal
law, a FORFEITURE judgment of a foreign court
automatically constitutes probable cause to
believe that the forfeited property also is subject
to forfeiture under the federalRACKETEERINGlaw
(18 U.S.C.A § 981(i)(3)[1986])
FURTHER READINGS
Burkoff, John M 2000 “When Is Probable Cause
Informa-tion in a Search Warrant ‘Stale’?” Search and Seizure
Law Report 27 (December): 81–8.
Lerner, Craig S 2003 “The Reasonableness of Probable
Cause ” Texas Law Review 81 (March): 951–1029.
Weaver, Russell L 2008 Principles of Criminal Procedure.
3d ed St Paul, Minn.: Thomson/West.
CROSS REFERENCES Automobile Searches; Constitutional Law; Criminal Procedure.
PROBATE The court process by which aWILLis proved valid
or invalid The legal process wherein the estate of a decedent is administered
When a person dies, his or her estate must
go through probate, which is a process overseen
by a probate court If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect If the decedent dies intestate—without leaving a will—the court appoints aPERSONAL REPRESENTATIVEto distribute the decedent’s property according to the laws
of DESCENT AND DISTRIBUTION These laws direct the distribution of assets based on hereditary succession
In general, the probate process involves collecting the decedent’s assets, liquidating liabilities, paying necessary taxes, and distribut-ing property to heirs Probate procedures are governed by state law and have been the subject
of debate and reform since the 1960s The UNIFORM PROBATE CODE(UPC) was first proposed
in 1969 by the National Conference of Com-missioners on Uniform State Laws and the House of Delegates of theAMERICAN BAR ASSOCIA-TION The prime focus of the UPC is to simplify the probate process The UPC, which has been amended numerous times, has been adopted
in its entirety by 16 states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah The other 36 states have adopted some part of the UPC but still retain distinct procedures
Probate of a Will The probate of a will means proving its genuineness in probate court Unless otherwise provided by statute, a will must be admitted
to probate before a court will allow the distribution of a decedent’s property to the heirs according to its terms
As a general rule, a will has no legal effect until it is probated A will should be probated immediately, and no one has the right to suppress it The person with possession of a
PROBATE 133
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denying probate.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Order Denying Probate
PROBATE COURT OF HAMILTON COUNTY, OHIO JAMES CISSELL, JUDGE
ESTATE OF _, DECEASED
CASE NO
INTERLOCUTORY ORDER DENYING PROBATE OF WILL AND ENTRY SETTING REHEARING FOR ADMISSION
TO PROBATE
The Court hereby finds that the will submitted for admission to probate in the within case does not comply with the requirements R.C 2107.03.
Pursuant to and in accordance with R.C 2107.181, the Court hereby issues an interlocutory order denying the admission to probate of said instrument This matter shall be set for further hearing before Judge James Cissell, no less than ten days hence on _ , _, at .M Room 101, 50 William Howard Taft Center, 230 E 9th Street Cincinnati, Ohio, so that the testimony of the witnesses may be obtained The Court orders that notice
be given to all interested parties as set forth in R.C 2107.181
Magistrate
James Cissell, Probate Judge
H.C FORM 102.30 - INTERLOCUTORY ORDER DENYING PROBATE OF WILL 02/10/03
134 PROBATE
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decedent’s attorney, must produce it Statutes
impose penalties for concealing or destroying
a will or for failing to produce it within a
specified time
Probate proceedings are usually held in the
state in which the decedent had domicile or
permanent residence at the time of death If,
however, the decedent owned real property in a
another state, the will disposing of these assets
must also be probated in that state
To qualify as a will in probate, an
instru-ment must be of testainstru-mentary character and
comply with all statutory requirements A
document is testamentary when it does not
take effect until after the death of the person
making it and allows the individual to retain the
property under personal control during her or
his lifetime A will that has been properly
executed by a competent person—the testator—
as required by law is entitled to be probated,
even if some of its provisions are invalid,
obscure, or cannot be implemented
A will made as a result ofFRAUD or UNDUE
INFLUENCEor a will that has been altered so that
all its provisions are revoked will be denied
probate If the alteration only revokes certain
provisions of the will, the remaining provisions
can be admitted to probate
All separate papers, instruments, or sheets
comprising the most recent of a testator’s wills
will be admitted to probate Where a later will
does not explicitly revoke all prior wills, two
separate and distinct wills can be probated
Probate courts seek to carry out the declared
intention of a testator regarding the disposition
of property, and they resort to distributing
property according to the law of descent and
distribution only where no reasonable
alter-natives exist
As a general rule, the original document
must be presented for probate Probate of a
copy or duplicate of a will is not permitted
unless the absence of the original is satisfactorily
explained to the court If a properly proved
copy or duplicate of a will that has been lost or
destroyed is presented to the court, it may be
admitted to probate Some states have special
proceedings to handle such occurrences A
thorough and diligent search for the will is
necessary before a copy can be probated as a
lost will
ACODICIL, which is a supplement to a will, is entitled to be probated together with the will it modifies, if it is properly executed according to statute If it is complete in itself and can stand as
a separate testamentary instrument independent
of the will, the codicil alone can be admitted to probate A codicil that has been subsequently revoked by another codicil is not entitled to probate
A will made in a foreign language will be admitted to probate if the testator understood what it contained and it otherwise complies with other statutory requirements A translation usually must accompany the will
Proceedings
A probate proceeding may involve either formal
or informal procedures Traditionally, probate proceedings were governed by formal proce-dures that required the probate court to hold hearings and issue orders involving routine matters Consequently, the legal costs of probating an estate could be substantial States that have adopted the UPC provisions on probate procedures allow informal probate proceedings that remove the probate court from most stages of the process, with the result that informal probate is cheaper and quicker than formal probate Most small estates benefit from an informal probate proceeding
The probate process begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the will and a petition to admit the will to probate and to grant LETTERS TESTAMEN-TARY, which authorize him or her to distribute the estate Although the personal representative usually files the probate petition, it can be filed
by any person who has a pecuniary interest in the will In states governed by the UPC, the personal representative must elect whether to proceed with formal or informal probate at the time of filing However, a probate proceeding may be switched from informal to formal during the course of administration, if issues
so warrant
In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residency of the decedent, the genuineness of the will, its conformance with statutory requirements for its execution, and the competency of the testator at the time the will was made These requirements are usually
PROBATE 135
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a will, it will be declared void, and the testator’s property will pass according to the laws of descent and distribution
When some or all of the witnesses to a will are unavailable, special steps are taken If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness
of the signatures and any other proof of execution available The UPC simplifies witness issues by permitting the admission of “self-authenticating” wills These wills contain a statement signed by the witnesses that attests
to the competency of the testator and other statutory requirements Self-authentication relieves the witnesses of the burden of appearing
in court and the personal representative of costly procedures if the witnesses are unavailable If
no one objects to the will at the hearing, it will
be admitted to probate
Informal probate proceedings generally do not require a hearing The personal representa-tive files the death certificate and will, along with a petition to admit the will under informal probate The clerk of probate court reviews the submissions and recommends to the court that the will be probated Once the court issues the order for informal probate, the personal representative files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the dece-dent’s creditors have been paid, and the estate’s assets have been collected, appraised, and distributed to the designated heirs
Contested Probate Proceedings The probate of a will can be opposed or contested on the ground that the instrument
is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required
by law, or any matter sufficient to show the nonexistence of a valid will When a will is contested, formal proceedings are required
Will contests are concerned only with external validity, such as failure of due execu-tion, fraud, mistake, undue influence, lack of testamentary capacity, or lack of intent that the
instrument be a will Issues of internal validity, such as violation of theRULE AGAINST PERPETUITIES, must be raised in proceedings at a later stage
of administration Although a will has been probated as a genuine expression of the testator’s intended distribution of property upon her or his death, the estate might be disposed of according to the laws of descent and distribu-tion if the testamentary provisions violate the law
Only a person having some interest that will
be affected by the probate can contest it Such persons include NEXT OF KIN who will receive property if the will is set aside and INTESTACY results, purchasers of property from the heir or heirs, administrators or personal representatives under prior wills, and the state, if there is a possibility of ESCHEAT, which means that the government will receive the property if no living heirs can be found Creditors, however, gener-ally are not entitled to contest the will of a debtor
An personal representative must defend the will against attack and must employ his or her best efforts to have it sustained if he or she reasonably believes that the will is valid Methods by which a will can be contested generally include a contest in the court having jurisdiction over probate, an appeal from the order granting or denying probate, and separate actions to set aside the order granting or denying probate
There is no constitutional right to trial by jury in probate or will contest proceedings Most states, however, have statutes making a trial by jury available in a will contest Statutes usually impose time limits on the institution of will contests
Agreement not to Contest
A testator can enter into a contract with her or his heirs in which they agree not to contest a will If the contract is supported by consider-ation—something of value—and the agreement
is otherwise valid, the heirs will be prevented from contesting the will The beneficiaries under a will and the heirs can enter into a valid contract not to contest a will States vary as
to the remedies a party to an agreement not to contest a will has upon breach These include
an INJUNCTION against the prosecution of the contest, an action at law for damages, or a defense to the contest
136 PROBATE
Trang 10An agreement among heirs and beneficiaries
not to contest a will is a way to avoid a costly
will contest proceeding The heirs and
bene-ficiaries negotiate a settlement that may defeat
the intention of the testator in how the assets
are distributed A settlement will be valid if all
interested parties agree, but it must not exclude
anyone entitled to property under the will
Under some statutes the compromise or
settle-ment must be submitted to the probate court
for approval
Guardianship of Minor Children
Wills often contain instructions on who should
be appointed legal guardian of the decedent’s
minor children The probate court may
investi-gate the qualifications of the proposed guardian
before granting an order of appointment When
a will does not contain a guardianship
provi-sion, the court itself must determine, based on
the best interests of the children, who should be
appointed guardian
Right of Review
A right of appeal from a probate decree is given
to any person who would suffer a direct
finan-cial loss as a result of the decree The appellate
court is restricted to a consideration of the
questions presented to and determined by the
lower court An issue not presented to the probate
court usually will not be considered
FURTHER READINGS
Brown, Gordon W 2003 Administration of Wills, Trusts,
and Estates 3d ed Clifton Park, N.Y.: Thomson/
Delmar Learning.
Christianson, Stephen G 2001 How to Administer an Estate:
A Step-by-Step Guide for Families and Friends 4th ed.
Franklin Lakes, N.J.: Career Press.
Clifford, Denis 2009 Estate Planning Basics Berkeley: Nolo
Press.
Esperti, Robert A., and Renno L Peterson 1992 The Living
Trust Revolution: Why America is Abandoning Wills and
Probate New York: Viking Penguin.
Foster, Frances H 2001 “The Family Paradigm of
Inheritance Law ” North Carolina Law Review 80
(December).
Monopoli., Paula A 2003 American Probate: Protecting the
Public, Improving the Process Boston: Northeastern
Univ Press.
Randolph, Mary 2008 8 Ways to Avoid Probate Berkeley,
CA: Nolo Press.
Shepherd, Thomas H 2001 “It’s the 21st Century Time
for Probate Codes to Address Family Violence: A
Proposal that Deals with the Realities of the Problem ”
St Louis University Public Law Review 20 (winter).
CROSS REFERENCES
Estate and Gift Taxes; Testamentary.
PROBATE COURT See COURT OF PROBATE
PROBATION
A sentence whereby a convict is released from confinement but is still under court supervision; a testing or a trial period Probation can be given in lieu of a prison term or can suspend a prison sentence if the convict has consistently demon-strated good behavior
The status of a convicted person who is given some freedom on the condition that for a specified period he or she act in a manner approved by a special officer to whom the person must report
An initial period of employment during which
a new, transferred, or promoted employee must show the ability to perform the required duties
Probation is the period during which a person, “the probationer,” is subject to critical examination and evaluation The word proba-tion is derived from probatum, Latin for “the act
of proving.” Probation is a trial period that must be completed before a person receives greater benefits or freedom
In the criminal justice system probation is a particular type of sentence for criminal defen-dants The judicial authority to order a sentence
of probation is granted in statutes on the federal and state levels Generally, probation allows a convicted defendant to go free with a suspended sentence for a specified duration during good behavior Probationers are placed under the supervision of a probation officer and must fulfill certain conditions If the probationer violates a condition of probation, the court may place additional restrictions on the probationer
or order the probationer to serve a term of imprisonment
A judge also may order probation in addition to a period of incarceration For example, a sentence might consist of a jail term and, after release, probation for a specified period of months or years Probation is generally reserved for persons sentenced to short terms in jail: It is not combined with a long prison sentence If a person is subjected to supervision after a stay in prison, the supervi-sion is conducted by aPAROLEofficer
Both probation and parole involve the supervision of convicted criminals, but the systems are distinct Probation is ordered by a judge; parole is granted by a parole board
Probation is an alternative to prison; parole is
PROBATION 137