PROBATE COURT (Let. probatus, p.p. of probate, to test, examine, from probes, good ). A court, whose original functions consist in the probate of wills and the administration of de cedents' estates. In England it dates from the Court of Probate Act of 1857 (20-21 Viet.. e.77). a statute which conferred upon this new tribunal all the powers and duties in probate matters, which the Prerogative Court of the Archbishop of Canterbury then had. By the Judication Act of 1873 (36-37 Viet., c.66) it became a part of the Supreme Court of Judication under the title of the Probate Division. Besides the judges of this division of the High Court of Justice, there are various registrars, record keepers, and minor officials assigned to the registry districts into which the kingdom is divided. Each district registrar has power to grant probate of wills or letters of administration, upon estates of persons having a fixed abode within the district at the time of death, provided no opposition is made thereto. In case of litigation, however. the pro ceedings for probate must be taken in the proper County Court, or in the Probate Division of the High Court.
In the United. States, probate courts have been temporal tribunals from the first. This was inevitable, for there were no Church establish ments in connection with which ecclesiastical courts could be organized after the English model. Hence the various colonies conferred the powers of proving and registering wills, of granting let ters of administration, and the like, upon some minor civil tribunal, such as the County Court in Massachusetts, or the Court of Burgomasters in New York, while that colony belonged to Holland, or the Court of Common Pleas after it passed under English rule. In many of the States at
present probate tribunals are distinct courts,w1th original and extensive jurisdiction not only over the probate of wills and the administration of decedents' estates, but over the appointment of guardians to minor and other legally incompetent. persons, over petitions for the adoption of chil dren, and the change of names. In other States these functions are imposed by statute upon different local tribunals, such as district and county courts. Even in States of the former class, the tribunals are variously designated, as Courts of Probate, Surrogates' courts, Ordinary's courts, or Orphans' courts. They are always inferior courts from whose decisions appeals may be taken to higher tribunals. For their jurisdic tion and powers, the statutes in each State must be consulted. See Nelson, Handbook on Probate Practice (London, 1901) ; Powles and Oakley, Principles and Practice of the Court of Probate (ib., 1892) ; Smith, Practice and Proceedings lit the Probate Courts (Boston, 1894) ; Law and Practice of Surrogates' Courts in the State of New York (New York, 1894).