Receipt of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under a will. A probate court (surrogate court) decides the legal validity of a testator's will and grants its approval (which word derives also from the Latin probo, probare) by granting probate to the executor. The probated will becomes a legal document which may be enforced by the executor, in the law-courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having legal power to dispose of the testator's assets in the manner specified in the will.

Etymology[link]

The English noun "probate" derives directly from the Latin verb probo, probare,^[1] to try, test, prove, examine,^[2] more specifically from the verb's past participle nominative neuter probatum,^[3] "having been proved". Historically during many centuries a paragraph in Latin of standard format was written by scribes of the particular probate court below the transcription of the will, commencing with the words (for example): Probatum Londini fuit huismodi testamentum coram venerabili viro (name of approver) legum doctore curiae prerogativae Cantuariensis... ("A testament of such a kind was proved at London in the prescence of the venerable man ..... doctor of law at the Prerogative Court of Canterbury...")^[4] The earliest usage of the English word was in 1463, defined as "the official proving of a will".^[5] The term "probative," used in the law of evidence, comes from the same Latin root but has a different English usage.

Probate clause[link]

A representative example of a complete probate clause, from the 14th.c. (or earlier) onwards, added at the bottom of the office transcribed copy of a will is as follows, taken from the will of Anthony Bathurst, 1697, PROB 11/438:^[6]

PROBATUM fuit huiusmodi testamentum apud Londinium coram ^[7] venerabili et egregio viro domino Richardo Raines, milite, legum doctore curiae praerogativae ^[8] Cantuariensis magistro custodis sive commissarii legitime constituti vicesimo tertio die mensis Junii Anno Domini Millesimo Sexcenti Nonaginta Septimo juramento ^[9] Mariae Bathurst relictae et executricis in dicto testamento nominata cui commissa fuit administratio omnium et singulorum bonorum, jurium et creditorum dicti defuncti de bene et fideliter administrando ^[10] eadem ad sancta Dei Evangelis jurat. Examinatur.

Translated literally as:

This will was proved at London before the worshipful Sir Richard Raines, knight, Doctor of Laws, Master Keeper or Commissary of the Prerogative Court of Canterbury, lawfully constituted, on the twenty third day of the month of June in the year of our Lord one thousand six hundred and ninety seven, by the oath of Mary Bathurst, relict and executrix named in the said will, to whom administration was granted of all and singular the goods, rights and credits of the said deceased, sworn on the holy Gospel of God to well and faithfully administer the same. It has been examined".

Probate administration[link]

Probate is a process by which a will of a deceased person is proved to be valid, such that their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:

• Creditors need to be notified and legal notices published.
• Executors of the will need to be guided in how and when to distribute assets and how to take creditors' rights into account.
• A Petition to appoint a personal representative may need to be filed and letters of administration obtained.
• Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, jointly owned property will pass automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
• There are time factors involved in filing and objecting to claims against the estate.
• There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
• Real estate or other property may need to be sold to effect correct distribution of assets pursuant to the will or merely to pay debts.
• Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
• Costs of the administration including ordinary taxation such as income tax on interest and property taxation will be deducted from assets in the estate before distribution by the executors of the will.
• Other assets may simply need to be transferred from the deceased to his or her beneficiaries.

Commonwealth[link]

In England and Wales, Northern Ireland, Commonwealth countries (common law jurisdictions), Ireland and in the U.S., probate ("official proving of a will") is obtained by executors of a will while letters of administration are granted where there are no executors.^[11]

United States[link]

This article relies largely or entirely upon a single source. Please help improve this article by introducing citations to additional sources. Discussion about the problems with the sole source used may be found on the talk page. (October 2007)

In any jurisdictions in the U.S. that recognize a married couple's property as tenancy by the entireties, if a person dies intestate (owning property without a will), the portion of his/her estate so titled passes to a surviving spouse without a probate.

If the estate is not automatically devised to the surviving spouse in this manner or through a joint tenancy, and is not held within a trust, it is necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (a probate court) supervises probate, to administer the disposition of the decedent's property according to the law of the jurisdiction and the decedent's intent as manifested in his testamentary instrument. In order to dispose of certain assets in the estate, it is necessary to sell the illiquid assets including real estate. There are exceptions for smaller estates.^{[citation needed]} If the decedent died without a will, known as intestacy, the estate will be distributed according to the laws of the state where the decedent resided or held by the court. If the decedent died with a will, the will usually names an executor (personal representative), a person tasked with carrying out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states will allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person will be named as administrator. An executor or an administrator may receive compensation for his service.

The probate court may require that the executor provide a fidelity bond, an insurance policy in favor of the estate to protect against possible abuse by the executor.^[12]

The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.

Steps of probate[link]

Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy insuring the decedent or bank or retirement account that names a beneficiary or is owned as "payable on death", and property (sometimes a bank or brokerage account) legally held as "jointly owned with right of survivorship".

Property held in a revocable or irrevocable trust created during the grantor's lifetime also avoids probate. In these cases in the U.S. no court action is involved and the property is distributed privately, subject to estate taxes.

After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes, including estate tax in the United States, if the estate is taxable at the federal or state level. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.

A party may challenge any aspect of the probate administration, such as a direct challenge to the validity of the will, known as a will contest, a challenge to the status of the person serving as personal representative, a challenge as to the identity of the heirs, and a challenge to whether the personal representative is properly administering the estate. Issues of paternity can be disputed among the potential heirs in intestate estates, especially with the advent of inexpensive DNA profiling techniques. In some situations, however, even biological heirs can be denied their inheritance rights, while non-biological heirs can be granted inheritance rights.^{[citation needed]}

The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.

England and Wales[link]

When someone dies, the term "probate" usually refers to the legal process whereby the deceased's assets are collected together and, following various legal and fiscal steps and processes, eventually distributed to the beneficiaries of the estate. Technically the term has a particular legal meaning, but it is generally used within the English legal profession as a term to cover all procedures concerned with the administration of a deceased person's estate. As a legal discipline the subject is vast and it is only possible in an article such as this to cover the most common situations, but even that only scratches the surface.

All legal procedures concerned with probate (as defined above) come within the jurisdiction of the Family Division of the High Court of Justice by virtue of Section 25 of the Senior Courts Act 1981. The High Court is therefore the only body that is able to issue the documents which give persons the ability to actually deal with a deceased person's estate, such as to enable them to close bank accounts or sell property or shares. It is the production and issuing of these documents, known collectively as "grants of representation" that is the primary function of the Probate Registries, which are part of the High Court, to which the general public and probate professionals alike apply to for the grants of representation.^[13]

There are many different types of grants of representation, each one designed to cover a particular circumstance. The most common ones are those which cover the two most common situations – either the deceased died leaving a valid will or they did not. If someone left a valid will then it is more than likely that the grant will be a "grant of probate". If there was no will then the grant required is likely to be a "grant of administration". There are many other grants which can be required in certain circumstances and many have technical Latin names but the general public is most likely to encounter grants of probate or administration. If an estate has a value of less than £5,000.00 or if all assets are held jointly and therefore pass by survivorship, for example to a surviving spouse, a grant will not usually be required.^[14]

The general public can apply to a local probate registry for a grant themselves but most people use a probate practitioner such as a solicitor. If an estate is small some banks and building societies will allow accounts to be closed by the deceased's immediate family without a grant, but there usually needs to be less than about £15,000 in the account for them to allow this.

The persons who are actually given the job of dealing with the deceased's assets are called "personal representatives" or "PR's". If the deceased left a valid will then the PR's will be the "executors" who are appointed by the will – "I appoint X and Y to be my executors etc." If there is no will or if the will does not contain a valid appointment of executors (for example if they are all dead) then the PR's are called "administrators". So, executors obtain a grant of probate which enables them to deal with the estate and administrators obtain a grant of administration which enables them to do the same. Apart from that distinction, the function of executors and administrators is exactly the same.

For an explanation of the intestacy probate process in England and Wales, see Administration of an estate on death.

See also[link]

• inheritance

References[link]

External links[link]

• The Quinnipiac Probate Law Journal – the official scholarly publication of the National College of Probate Judges
• The Connecticut Probate Court Website – providing good state-specific information as well as a link to a widely applicable overview of most Probate Courts' jurisdiction
• List of English and Welsh Regional Probate Registries – Regional Offices for probate information and to register the location of a will or executor

George Mason
Born	George Mason (1725-12-11)December 11, 1725 Fairfax County, Colony of Virginia
Died	October 7, 1792(1792-10-07) (aged 66) Gunston Hall, Fairfax County, Virginia
Cause of death	natural causes
Residence	Gunston Hall, Fairfax County, Virginia
Nationality	British, American
Ethnicity	English American
Citizenship	Kingdom of Great Britain United States
Occupation	Patriot, statesman and delegate from Virginia to the U.S. Constitutional Convention
Religion	Anglican, Episcopalian
Spouse	Ann Eilbeck Sarah Brent
Children	George Mason V Ann Eilbeck Mason Johnson William Mason William Mason Thomson Mason Sarah Eilbeck Mason McCarty Mary Thomson Mason Cooke John Mason Elizabeth Mason Thornton Thomas Mason James Mason Richard Mason
Parents	George Mason III Ann Stevens Thomson

George Mason IV (December 11, 1725 – October 7, 1792) was an American Patriot, statesman and a delegate from Virginia to the U.S. Constitutional Convention. Along with James Madison, he is called the "Father of the Bill of Rights."^[1][2][3][4] For these reasons he is considered one of the "Founding Fathers" of the United States.^[5][6]

Like anti-federalist Patrick Henry, Mason was a leader of those who pressed for the addition of explicit States rights^[7] and individual rights to the U.S. Constitution as a balance to the increased federal powers, and did not sign the document in part because it lacked such a statement. His efforts eventually succeeded in convincing the Federalists to add the first ten amendments of the Constitution. These amendments, collectively known as the Bill of Rights, were based on the earlier Virginia Declaration of Rights, which Mason had drafted in 1776.

On the nagging issue of slavery, Mason walked a fine line. Although a slaveholder himself, he found slavery repugnant for a variety of reasons. He wanted to ban further importation of slaves from Africa and prevent slavery from spreading to more states. However, he did not want the new federal government to attempt to ban slavery where it already existed, because he anticipated that such an act would be difficult and controversial.

Family[link]

George Mason was born on December 11, 1725 to George and Ann Thomson Mason at the Mason family plantation in Fairfax County, Virginia. At the age of 10^[8], George's father died in 1735 in a boating accident on the Potomac, when the boat capsized and he drowned. After this event the younger Mason lived with his uncle John Mercer. On April 4, 1750, he married sixteen-year-old Ann Eilbeck, from a plantation in Charles County, Maryland.^[9] They lived in a house on his property in Dogue's Neck, Virginia. Mason completed construction of Gunston Hall, a plantation house on the Potomac River, in 1759. He and his wife had twelve children, nine of whom survived to adulthood. Mason's first child, George Mason V of Lexington,^[10] was born on April 30, 1753. He married Elizabeth Mary Ann Barnes Hooe (Betsy) on April 22, 1784, and after having six children, died on December 5, 1796. The next Mason offspring was Ann Eilbeck Mason, fondly known as Nancy. Born on January 13, 1755, she married Rinaldo Johnson on February 4, 1789 and had three children before dying in 1814. The third child was named William Mason, but he did not live over a year and died in 1757. The fourth child, born on October 22, 1757, was also named William Mason, and he married Ann Stuart on July 11, 1793. They had five children together, and he died in 1818. The fifth child was a son they named Thomson Mason. He was born on March 4, 1759 and died on March 11, 1820. Thomson married Sarah McCarty Chichester of Newington in 1784; they had eight children.

George Mason's sixth child, christened Sarah Eilbeck Mason but fondly known as Sally, was born on December 11, 1760 and married in 1778. She had ten children with her husband Daniel McCarty, Jr. before dying on September 11, 1823. The seventh of the Mason children was another girl, Mary Thomson Mason. She was born on January 24, 1764, and married John Travers Cooke on November 18, 1784, with whom she had ten children before dying in 1806. John Mason was Mason's eighth child, being born on April 4, 1766. He married Anna Marie Murray on February 14, 1796, had ten children, and died on March 19, 1849. The ninth child was a daughter named Elizabeth Mason. She was born on April 19, 1768 and died sometime between 1792 and June 1797. She married William Thornton in 1789 and they had two children. The tenth child, Thomas Mason, was born on May 1, 1770 and died on September 18, 1800. He married Sarah Barnes Hooe on April 22, 1793 and the two had four children together.

George Mason's last two children were James and Richard Mason; twins who were born in December, 1772 but died six weeks later. Their mother died three months later on March 9, 1773 due to complications. George Mason remarried on April 11, 1780 but did not have any children with his new wife, Sarah Brent. George Mason also suffered from the condition known as gout for a large part of his life, and in accordance with current medical treatment, relied upon bloodletting.

Mason had virtually no formal schooling and essentially educated himself from his uncle's library.^[11]

Politics[link]

Gunston Hall in May 2006, seen from the front

Mason served at the Virginia Convention in Williamsburg in 1776. During this time he created drafts of the first declaration of rights and state constitution in the Colonies. Both were adopted after committee alterations; the Virginia Declaration of Rights was adopted June 12, 1776, and the Virginia Constitution was adopted June 29, 1776.

Mason was appointed in 1786 to represent Virginia as a delegate to a Federal Convention, to meet in Philadelphia for the purpose of revising the Articles of Confederation. He served at the Federal Convention in Philadelphia from May to September 1787 and contributed significantly to the formation of the Constitution. "He refused to sign the Constitution, however, and returned to his native state as an outspoken opponent in the ratification contest." ^[12] One objection to the proposed Constitution was that it lacked a "declaration of rights". As a delegate to Virginia's ratification convention, he opposed ratification without amendment. Among the amendments he desired was a bill of rights. This opposition, both before and during the convention, may have cost Mason his long friendship with his neighbor George Washington, and is probably a leading reason why George Mason became less well-known than other U.S. founding fathers in later years. On December 15, 1791, the U.S. Bill of Rights, based primarily on George Mason's Virginia Declaration of Rights, was ratified in response to the agitation of Mason and others.

At the convention, Mason was one of the five most frequent speakers. Mason believed in the disestablishment of the church. Mason was a strong anti-federalist who wanted a weak central government, divided into three parts, with little power, leaving the several States with a preponderance of political power.^[7]

An important issue for him in the convention was the Bill of Rights. He did not want the United States to be like England. He foresaw sectional strife and feared the power of government.^[13]

Letter from Mason to George Washington congratulating him on victory at Boston, April 1776

Slavery[link]

A Virginia planter, Mason owned many African slaves. Like some of his contemporary slave owners (e.g. Thomas Jefferson and George Washington), Mason conceded that the institution was morally objectionable, once calling it a "slow Poison" that "is daily contaminating the Minds & Morals of our People."^[14] Mason favored the abolition of the slave trade, but he did not advocate for the immediate abolition of slavery. Like Jefferson, he owned slaves whom he did not manumit.

Two of Mason's stated reasons for opposing the U.S. Constitution were seemingly contradictory: on the one hand, he said that the draft Constitution did not specifically protect the right of states to let slavery continue where it already existed, and on the other hand he also said that the draft Constitution did not allow Congress to immediately stop the importation of slaves.^[14][15] Mason's immediate concern was to prevent more slaves from being imported, and to prevent slavery from spreading into more states.^[16] He was not eager to ban slavery where it already existed: "It is far from being a desirable property. But it will involve us in great difficulties and infelicity to be now deprived of them."^[16] Mason ostensibly balanced his anti-slavery argument that importation should stop, with a pro-slavery argument that the draft Constitution should protect slavery from being taxed out of existence; however, the latter argument had already been incorporated into the Constitution according to James Madison.^[17]

Because of his efforts to stop the spread of slavery, and his recognition of the undesirability of slavery, some historians have said that Mason should be categorized as an abolitionist.^[18] Other historians have disagreed.^[18]

Death and remembrance[link]

Bas-relief of George Mason in the chamber of the U.S. House of Representatives

George Mason Memorial statue in Washington, D.C.

George Mason died peacefully at his home, Gunston Hall, on October 7, 1792. Located in Mason Neck, Virginia, Gunston Hall is now a museum and tourist attraction. The George Mason Memorial in West Potomac Park, Washington, D.C., near the Thomas Jefferson Memorial, was dedicated on April 9, 2002. The George Mason Memorial Bridge, one of five that make up the 14th Street Bridge, connects Washington, D.C., to Virginia. George Mason Elementary School in Alexandria, Virginia, George Mason High School in Falls Church]], and George Mason University in Fairfax, Virginia, are named in his honor, as are Mason County, Kentucky, Mason County, West Virginia and Mason County, Illinois. He was honored by the United States Postal Service with an 18¢ Great Americans series postage stamp. A bas-relief of Mason appears in the Chamber of the U.S. House of Representatives as one of 23 honoring great lawmakers; his image is located above and to the right of the Speaker's chair.^[19] Society of Professional Journalists, Virginia Pro Chapter, presents an annual award named for Mason to a person who has made significant, lasting contribution to the practice of journalism in the Commonwealth.

See also[link]

• U.S. Constitution, slavery debate in Convention

References[link]

Bibliography[link]

• Bailyn, Bernard, ed. (1993). The Debate on the Constitution: Federalist and Anti federalist Speeches, Articles, and Letters During the Struggle over Ratification, 2 vols. Library of America. 
• Broadwater, Jeff (2006-09-01). George Mason: Forgotten Founder. Chapel Hill, North Carolina: Fred W. Morrison Fund for Southern Studies of the University of North Carolina Press. ISBN 978-0-8078-3053-6. 
• Curtis, Barbara Jocelyn (1938). George Mason, Statesman, Rebel, Public Servant. 
• Hawkes, Robert T., Jr. (1996). "An Uncommon American Hero: George Mason And The Bill Of Rights". Northern Neck of Virginia Historical Magazine 1 (46): 5328–5338. 
• Henriques, Peter R. (1989). "An Uneven Friendship: The Relationship Between George Washington And George Mason". Virginia Magazine of History and Biography 2 (97): 185–204. 
• Jensen, Merrill et al., eds. (1976-). The Documentary History of the Ratification of the Constitution of the United States, 20 vols. Madison: State Historical Society of Wisconsin. 
• Ketcham, Ralph, ed. (1986). The Anti-Federalist Papers and the Constitutional Convention Debates. Penguin. ISBN 0-451-52884-0. 
• Lee, Emery G. (1997). "Representation, Virtue, and Political Jealousy in the Brutus-Publius Dialogue". The Journal of Politics (Cambridge University Press) 59 (4): 1073–1095. DOI:10.2307/2998593. JSTOR 2998593. 
• Leffler, Richard (1987). "The Case Of George Mason's Objections To The Constitution". Manuscripts 4 (39): 285–292. 
• Meltzer, Milton (1990). The Bill Of Rights: How We Got It And What It Means. New York: Thomas Crowell. ISBN 0-690-04805-X. 
• Miller, Helen Hill (July 2001) [1938]. George Mason, Constitutionalist. Safety Harbor, Fl.: Simon Publications. ISBN 1-931313-45-8. 
• Miller, Helen Hill (1966) [1938]. George Mason, Constitutionalist. Gloucester: P. Smith. ISBN 1-931313-45-8. 
• Pole, J.R., ed. (1987). The American Constitution--For And Against: The Federalist And Anti-Federalist Papers. New York: Hill and Wang. ISBN 0-8090-2466-7. 
• Rowland, Kate Mason (1892). The Life Of George Mason, 1725-1792. New York: G.P. Putnam's Sons. ISBN 0-548-13895-8. http://books.google.com/?id=F0F6TuWe_LwC&dq=dogue's+neck. 
• Rutland, Robert A. (September 1980). George Mason : Reluctant Statesman. ISBN 0-8071-0696-8. 
• Rutland, Robert A., et al. eds. (1970). The papers of George Mason, 3 vols. Chapel Hill: University of North Carolina Press. 
• Storing, Herbert, ed. (1985). The Anti-Federalist. University of Chicago Press. ISBN 0-226-77565-8. 
• Storing, Herbert; Murray Dry, eds. (1981). The Complete Anti-Federalist 7 vol. University of Chicago Press. 

External links[link]

Wikiquote has a collection of quotations related to: George Mason

Wikimedia Commons has media related to: George Mason (statesman)

• George Mason biography
• Gunston Hall Home Page
• Amazing Mason by John J. Miller
• Website of George Mason University
• George Mason University Study Abroad- Center for Global Education
• MasonStudents - GMU's Student Run Discussion Forum