When a person dies, his estate must be disposed of to those who, as creditors, or as heirs and distributees, or as beneficiaries under a will, are entitled thereto. This requires administration in the court provided for that purpose. We have already discussed the law of descent and heirship, and the law of wills. Let us now in this chapter concern ourselves with the settlement of the estate of a deceased person, whether he has left a will or has not left a will. In the one case he is called a testator, in the other, an intestate. He may die intestate as to some property and testate as to other, but this is very unusual.
Courts which have jurisdiction of estates of decedents are called Courts of Probate, Surrogate's Courts, etc.
Courts of administration of the estates of deceased persons are established, called Courts of Surrogate, Orphan's Courts, Probate Courts, and the like. Generally such courts have also other jurisdiction, as over guardianships of minors, and of insane persons, and may have also other classes of jurisdiction.
The proceedings are formally opened in the court by an application for letters of administration or letters testamentary.
The first step in probating an estate may be the mere filing of the will. But generally this is accompanied with the petition. The petition sets forth the death, and recites whether there was a will or whether decedent died intestate. It prays for letters to issue to the petitioner or to the person entitled to them.
The nearest relative is ordinarily entitled to administer.
In case of intestate estates, or testate estates in which there is no executor named, or the one named can not or will not serve, the statute provides who shall be entitled to administer. This naturally is the nearest relative, if of age and resident in the jurisdiction, or whatever limitations may be imposed. The statute provides also that the Public Administrator may serve in the event there is no one else who can or will serve. Creditors may apply for letters of administration, if the relatives entitled to do so do not act.
The person named in the will as executor is entitled to serve as such, unless he has the general statutory disqualifications.
The statute usually sets forth some qualifications as that of full age or residence in the jurisdiction, to entitle one to act as executor. If he is not debarred by these general qualifications, he is entitled to serve, and the court has no discretion to refuse him. The fact that he is interested in the estate, as creditor or as beneficiary does not debar him. In fact it is quite frequent that an executor is one to whom the entire estate is given.
One cannot be an executor and also witness to will, but if he is not a necessary witness, he may serve. •
The personal representative must provide the bond required by law, the amount of which depends upon the size of the personal estate.
The executor or administrator must furnish bond with such sureties thereon and in such amount as the law requires.
A will however may waive bond, and in that case no bond is necessary unless it appears to the court that the interest of the estate so requires.
Whether an estate is testate or intestate, the heirship must be proved as a part of the record.
In case of a will, the course of descent and distribution has been changed, and those who take, do so as beneficiaries under the will, rather than as heirs, but whether there is a will or not, the heirship must be proved and the heirs notified, in order that they may protect their interests.
Any relative is a competent witness to prove heirship who knows the family history even though his information comes partially from hearsay.
The will must be proved by the witnesses thereto.
When the will is filed the court sets it for hearing. The witnesses to the will must prove it. In case they are absent their depositions may be taken. If the witnesses are dead, or for any reason their testimony cannot be procured, proof of their handwriting will suffice.
The witnesses to the will testify as to the mental condition of the testator and that they believed and now believe him to be of sound mind and disposing memory.
If the will is duly proved then it is "admitted to probate" by formal order.
It is the duty of the administrator or executor to file an inventory of the assets.
The personal representative must file shortly after his appointment and qualification, an inventory of all the assets of the deceased that have come to such representative's hands or knowledge, describing the estimated value thereof, and setting forth whether the credits are good, doubtful or desperate.
Generally the law provides for appraisers to value the tangible personal assets.
By statute generally a certain award is made to the widow, which is a debt against the estate.
By common law there was a right on the part of the widow to occupy the mansion house for a specified time called the "widow's quarantine." By statute there have been various provisions in the nature of awards to a widow sometimes enlarged where there are children, and this award the widow is entitled to as a debt against the estate. Its amount is governed by the statute and the size of the estate. Generally, it is made a debt having priority.