Chapter 1 - § 1.4 • HISTORICAL BACKGROUND OF PROBATE JURISDICTION

• Jurisdiction: Colorado

§ 1.4 • HISTORICAL BACKGROUND OF PROBATE JURISDICTION

Originally, in England, probate jurisdiction was in the ecclesiastical courts. Later, courts of chancery began to exercise probate jurisdiction, and the modern probate court has the powers of both ecclesiastical and chancery courts.¹¹

The ecclesiastical courts were much affected by the civil and canon law. Such courts had jurisdiction to admit wills to probate and to administer personal property in both testate and intestate estates but lacked power over the devolution of real estate, which under the feudal system was not subject to disposition by will until the Statute of Wills (1540). The ecclesiastical courts admitted wills to probate both informally (by affidavit) or formally (after notice) (see §§ 3.14 and 3.15). At this time, a will was a mere muniment of title as to real estate, regardless of the action of the ecclesiastical court. The power of the ecclesiastical court apparently was to enforce its orders by means of excommunication.

Chancery courts became involved in estate administration because they treated the duties of the personal representative as akin to trusteeship for the persons in interest, and if real estate was involved and there was a devise to pay debts and legacies, the chancery court took charge and completed the administration, exercising its broad powers to that end and enjoining violation of its orders.

This conflicting jurisdiction by the three types of courts continued in England until 1857, when courts of probate were established by legislation to have jurisdiction over the establishment of wills and granting letters of administration of decedents' estates. However, suits against personal representatives would be at common law, and...