California Probate History
For you history buffs, this is the story of how the California Probate Court came into being.
The word “probate” derives from the Latin verb “probatio” that means “to prove”. I use the phrase “probate the will” to “prove” to the California probate court that the will filed with the probate court actually is the decedent’s last will and testament and that the terms of the will are indeed what the decedent intended.
Although the early origins of the use of wills may be in dispute most scholars will agree that the Romans used “oral” wills where the declarant would stand before seven witnesses and publicly “publish” his will. The Roman oral will program failed due to the fading of memories, death of witnesses and everyday Roman corruption. Thereafter, Roman wills were required to be in writing. In fact, they had to be written only in Latin up to about 439 AD.
On October 14, 1066 William the Conqueror, the Duke of Normandy, and King Harold II, the leader of the Saxony Army, had a spat on a knoll outside of Hastings, England. Not only did King Harold II fall when an arrow pierced but control of England also fell into William’s hands shortly after the pivotal Battle of Hastings. Well, what to do with all this new English real estate? William decided to reward his soldiers by giving them some rights to use the newfound English land. A “fief” became a parcel of land controlled by a Baron that consisted of a castle, a church and a market. Over the years the Feudal System took shape whereby a King owned the land and lords granted fiefs to vassals (Knights) in exchange for services and protection. If a knight were again summoned to battle and was a little rusty with his axe and bow what would become of his rights to use the land and his personal property upon his death?
The Old England will system. Remember that church in each one of the fiefs? The Old England system of wills used religious courts to probate wills. Typically the widow of a fallen knight would “prove” her husband’s will before an ecclesiastical judge that had jurisdiction over wills, trusts and the administration of estates.
The New England will system. The first United States probate court was established in Massachusetts in 17 84. Probate law began to be codified and adopted by the states. Parts of the Roman system requiring a will be in writing and parts of the English system were integrated into probate law in the United States. Laws for persons who died without a will or trust were called “intestate” and a system to say who got an intestate’s property were adopted. (intestate succession)
When California became a state on September 9, 1850 California adopted many of the laws of wills, trusts and intestate succession from Roman and English law as well as the 30 other states in existence as California probate courts evolved. California probate laws were added to the general laws of California in the order that the governor signed them. Finally in 1931 all of the California probate laws were codified into what we now refer to as the California Probate Code.
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