1. Trang chủ
  2. » Văn bán pháp quy

Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P15 doc

10 120 0

Đang tải... (xem toàn văn)

THÔNG TIN TÀI LIỆU

Thông tin cơ bản

Định dạng
Số trang 10
Dung lượng 183,25 KB

Nội dung

citizen of the United States.” The Privileges and Immunities Clause guaranteed the right of a citizen to “become a citizen of any State of the Union.” It did not permit the states to “select their citizens.” In Hillside Dairy Inc. v. Lyons,539 U.S. 59, 123 S.Ct. 2142, 156 L.Ed.2d 54 (2003), the court used the Privileges and Immunities Clause in part to rule as against a California law that favored state milk producers over out-of- state producers. Even though the California law did not explicitly draw a distinction based on citizenship or residence, if it had the practical effect of discriminating against a nonresident, there was a legitimate privileges and immunities claim that the plaintiffs could raise. FURTHER READINGS Barron, Jerome, and Dienes, Thomas. 2006. First Amendment Law in a Nutshell. 6th ed. St. Paul, Minn.: Thomson West. Flack, Horace Edgar. 2003. The Adoption of the Fourteenth Amendment. Birmingham, Ala.: Palladium Press. Noonan, John T., Jr. 2002. Narrowing the Nation’s Power: The Supreme Court Sides with the States. Berkeley: Univ. of California Press. CROSS REFERENCE Equal Protection. PRIVITY A close, direct, or successive relationship; having a mutual interest or right. Privity refers to a connection or bond between parties to a particular transaction. Privity of contract is the relationship that exists between two or more parties to an agreement. Privity of estate exists between a lessor and a lessee, and privity of possession is the relationship between parties in successive possession of real property. PRIVY One who has a direct, successive relationship to another individual; a coparticipant; one who has an interest in a matter; private. Privy refers to a person in privity with another—that is, someone involved in a partic- ular transaction that results in a union, connec- tion, or direct relationship with another. Privies in blood are the heirs of an ancestor. Privies in estate are people who succeed or receive an assignment of property, such as a grantor and a grantee, lessor and lessee, or assignor and assignee. PRIVY COUNCIL The Privy Council is the British Crown’s private council. It is composed of more than 300 members, including cabinet members, distin- guished scholars, judges, and legislators. Once a powerful body, it has lost most of the judicial and political functions it exercised since the middle of the seventeenth century and has largely been replaced by the Cabinet. The Privy Council derived from the King’s Council, which was created during the Middle Ages. In 1540, the Privy Council came into being as a small executive committee that advised the king and administered the government. It advised the sovereign on affairs of state and the exercise of the royal prerogative. It implemented its power through royal proclamations, orders, instructions, and informal letters, and also by giving directions to, and receiving reports from, the judges who traveled the circuits, hearing cases in cities and towns, twice a year. It concerned itself with public order and security, the economy, public works, public authorities and corporations, local government, Ireland, the Channel Islands, the colonies, and foreign affairs. The inner circle of advisers in the Privy Council met in the royal chamber or cabinet and was therefore called the Cabinet Council. In the eighteenth century, the cabinet became the council for the prime minister, the leader of Parliament. The United States adopted the cabinet idea, though its legal status is not identified in the Constitution. Cabinet members are presidential advisers who serve as executive branch department heads. The power of the Privy Council disappeared between 1645 and 166 0, during the English Civil War and the government of Oliver Cromwell. It never recovered its former posi- tion. Long policy debates shifted to Parliament, and important executive decisions went to committees. In modern days, members of the Privy Council rarely meet as a group, delegating their work to committees. The Lord President of the council, who is a member of the cabinet, is the director of the Privy Council Office. The most important committee is the Judicial Committee of the Privy Council, which comprises all members of the council who have held high judicial office. Usually, however, three to five Lords of Appeal sit to hear appeals from the United Kingdom, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 128 PRIVITY the British Crown colonies, and members of the Commonwealth. The committee does not give a judgment but prepares a report to the sovereign, and its decision may be implemented in an Order in Council. The work of the committee has diminished because it rarely hears ecclesiastical appeals and because many Commonwealth countries have abolished the right of appeal. Throughout much of the eighteenth cen- tury, the Privy Council in England exercised VETO power over the laws of the colonial assemblies of British North America. JAMES MADISON sought to restore this veto power at the Constitutional Conventio n by empowering Congress to negate or veto state laws deemed to be inconsistent with national interests. Madi - son’s proposal was framed broadly enough to empower Congress to veto state laws on the basis of policy differences, and not solely on the basis of unconstitutionality. In the end, the convention rejected the proposed national veto on state laws, erecting instead a system in which the SUPREME COURT was responsible for consider- ing whether state laws conflicted with supreme federal law. FURTHER READINGS Lehrfreund, Saul. 1999. “The Death Penalty and the Continuing Role of the Privy Council.” New Law Journal (August 20). Owen, D.H.O. 1992. “The Privy Council and the Profes- sional Foul.” Medico-Legal Journal 60 (spring). CROSS REFERENCE Curia Regis. PRIZE Anything offered as a reward for a contest. It is distinguished from a bet or wager in that it is known before the event who is to give either the premium or the prize, and there is but one operation until the accomplishment of the act, thing, or purpose for which it is offered. In time of war, an enemy vessel or a ship captured at sea by a belligerent power. The fair market value of a prize or award is generally includible in gross income. Certain exceptions are provided where the prize or award is made in recognition of religious, charitable, scientific, educational, artistic, literary, or civic achievement providing certain other require- ments are met. PRIZE COURTS Tribunals with jurisdiction to decide disputes involving captures made upon the high seas during times of war and to declare the captured property as a “prize” if it is lawfully subject to that sentence. Under federal law, seized aircraft can also be subject to the jurisdiction of these courts. In England, ADMIRALTY courts possess juris- diction as prize courts, in addition to their customary admiralty jurisdiction. The judge of an admiralty court receives a special commis- sion in time of war to empower him or her to conduct such proceedings. At the turn of the twentieth century, a proposed international prize court was the subject of considerable international negotia- tion, but ultimately it never began, because the convention that would have created it was never ratified, and no such court has existed since then. In the United States, federal district courts have ORIGINAL JURISDICTION to try prize cases, under 10 U.S.C. § 7651-7681, but no such cases have been heard in them since the 1950s. The law followed in U.S. prize courts is U.S. law, and appeals go to the circuit courts and then, potentially, to the U.S. Supreme Court. FURTHER READINGS Bourguignon, Henry J. 1977. The First Federal Court: The Federal Appellate Prize Court of the American Revolution, 1775–1787. Memoirs of the American Philosophical Society, vol. 122. Philadelphia: American Philosophical Society. Joe and Sue Kainz display a lottery prize check in the amount of $181.5 million. Lottery winners do not receive the full amount of their prizes, because such money is taxed as income. REUTERS NEWMEDIA INC./CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PRIZE COURTS 129 Wilson, George Grafton, and George Fox Tucker. 1910. International Law, 5th ed. New York: Silver, Burdett & Company. CROSS REFERENCE Admiralty and Maritime Law. PRIZE LAW During times of war, belligerent states may attempt to interfere with maritime commerce to prevent ships from carrying goods that will aid the war effort of an opponent. After ships are captured and brought to a friendly port, a local tribunal called a PRIZE COURT will determine the legality of the seizure, or the destruction of the vessel and cargo if the vessel cannot be sailed to a friendly port. The body of customary INTERNATIONAL LAW and treati es that determines the appropriateness of such actions is referred to as prize law. Prize law has not been completely consistent in its development because the tribunals that rule on the seizure of the vessel are national tribunals and may reflect the interests of the belligerent state in interdicting the enemy war effort. The expanding scop e of warfare and the concept of total war have also blurred the distinction between vessels subject to capture as a prize of war and those that are exempt. Some basic rules remain, however. All vessels of an enemy state are subject to seizure at any time by an opposing belligerent. Warships may be sunk immediately, and private merchant vessels are to be taken to a friendly port, if possible, for ADJUDICATION by a prize court. A prize co urt examines DOCUMENTARY EVIDENCE to determine whether the seizure of a ship was the act of sovereign authority. A neutral vessel on the high seas or in a belligerent’s territorial sea may be stopped and searched, if it is suspected of carrying CONTRABAND, and it may be condemned as a prize of war if any is found. Finally the right of coastal fishing vessels of any state to be free from seizure while plying their trade is almost universally recognized. When movable property in the hands of the enemy is used or intended to be used for hostile purposes, and is captured by land forces, title to the property passes to the captors as soon they have firm possession. CROSS REFERENCE Admiralty and Maritime Law. PRO [Latin, For; in respect of; on account of; in behalf of.] PRO BONO Short for pro bono publico [Latin, For the public good]. The designation given to the free legal work done by an attorney for indigent clients and religious, charitable, and othe r nonprofit entities. As members of a profession, lawyers are bound by their ethical rules to charge reason- able rates for their services and to serve the PUBLIC INTEREST by providing free legal service to indigent persons or to religious, charitable, or other nonprofit groups. A lawyer’s free legal service to these types of clients is designated as pro bono service. Lawyers have always donated a portion of their time to pro bono work, but in the United States the demand for legal services from people who cannot afford to hire an attorney has grown since the 1960s. Lawyers previously donated time on an ad hoc basis. The establishment of legal aid organizations to serve indigent persons in the 1960s changed the way attorneys obtained pro bono work. Legal aid attorneys, who were unable to satisfy all the legal needs of poor people, created programs to recruit private attorneys willing to donate some of their time. These programs recruit attorneys and then train them to handle common types of cases. The AMERICAN BAR ASSOCIAT ION (ABA) has become a national leader in the effort to enhance pro bono legal services. The ABA Model Rule for Pro Bono Publico Service suggests that “a lawyer should aspire to render at least 50 hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the 50 hours of legal services without fee or expectation of fee to: (1) persons of limited means or (2) charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.” In addition, the ABA suggests that additional services should be provided for a reduced fee or no fee to individuals, groups, or organizations working in some aspect of public interest law, such as CIVIL RIGHTS or civil liberties groups. Many state bar associations have adopted this ABA model rule as a requirement for their state’s lawyers. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 130 PRIZE LAW The ABA Center for Pro Bono assists ABA members and the legal community in develop- ing and supporting effective pro bono legal services in civil matters as part of the profes- sion’s effort to ensure access to LEGAL REPRESEN- TATION and the justice system. The center helps create, design, and implement pro bono pro- grams. It sponsors an annual conference for bar leaders, pro bono program managers, legal service staff, and others involved in the delivery of pro bono legal services to poor people. State and local bar associations also assist in the creation and maintenance of pro bono programs. Despite these efforts, the need for legal services currently outstrips the pro bono services provided. FURTHER READINGS American Bar Association. American Bar Association Model Rule 6.1: Voluntary Pro Bono Publico Service. Coulter, Dolores M. 2001. “The Pro Bono Priority.” Michigan Bar Journal 80 (September). Minnesota Rules of Court. 1996. St. Paul, Minn.: West. PRO FORMA As a matter of form or for the sake of form. Used to describe accounting, financial, and other state- ments or conclusions based upon assumed or anticipated facts. The phrase pro forma, in an appealable decree or judgment, usually means that the decision was rendered not on a conviction that it was right, but merely to facilitate further proceedings. PRO HAC VICE For this turn; for this one particular occasion. For example, an out-of-state lawyer may be admitted to practice in a local jurisdiction for a particular case only. PRO RATA [Latin, Proportionately.] A phrase that describes a division made according to a certain rate, percentage, or share. In a BANKRUPTCY case, when the debtor is insolvent, creditors generally agree to accept a pro rata share of what is owed to them. If the debtor has any remaining funds, the money is divided proportionately among the creditors, according to the amount of the individual debts. A pro rata clause in an automobile insurance policy provides that when an insured person has other insurance policies covering the same type of risk, the company issuing the policy with the pro rata clause will be liable only for a proportion of the loss represented by the ratio between its policy limit and the total limits of all the available insurance. PRO SE For one’s own behalf; in person. Appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself or herself in court. Pro se representation, which can occur in criminal or civil actions, is potentially very risky inasmuch as such parties tend not to have legal educations and backgrounds and thus are usually at a considerable strategic disadvantage because they are unfamiliar with trial technique and legal procedure in general. Moreover, they are very likely to miss issues for appeal. Some pro se defendants begin with representation and then, for any number of reasons, dismiss their attorneys and take their defense entirely into their own hands. Pro se defendants are sometimes involved in high-profile prosecutions. One prominent example was John Allen Muhammad, known nationally as the “Beltwa y sniper,” who in 2002 was arrested in connection with a series of shootings, over a three-week period, in the national capital region that left ten people dead. Eventually Judge LeRoy Millette granted Muhammad’s request to represent himself, and Muhammad began with his own opening statement and attempted to cro ss-examine several witnesses. The original court-appointed lawyers remained present, and Muhammad soon reinstated them and ceased his pro se defense. In 2005 Muhammad was convicted of murder and received a death sentence; in November 2009 he was executed by lethal injection in Virginia. On appeal, Muhammad’s attorneys argued that the pro se defense should not have been permitted and that Muham mad should have been allowed a competency hearing. PRO TANTO [Latin, For so much; for as much as one is able; as far as it can go.] A term that refers to a partial payment made on a claim. In an EMINENT DOMAIN case, pro tanto des- cribes the partial payment made by the govern- ment for the taking of land. This payment is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRO TANTO 131 given WITHOUT PREJUDICE, and the petitioner can maintain an action for the full amount of the land. A pro tanto defense is a defendant’s counter- claim against the plaintiff for one-half the requested damages. PRO TEM [Latin, For the time being.] An abbreviation used for pro tempore, Latin for “temporary or provisional.” A person who acts as a temporary substitute serves pro tem. The term is often used to describe the acting head of a governing body, such as the president pro tem of the Senate, who presides over the Senate when the vice president is unable to do so. PROBABLE CAUSE Probably cause refers to a level of reasonable belief which occurs when apparent facts discovered through logical inquiry lead a reasonably intelli- gent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a cause of action has accrued, justifying a civil lawsuit. Probable cause is a level of reasonable belief based on facts that can be articulated that is required to sue a person in civil court or to arrest and prosecute a person in criminal court. Before a person can be sued or arrested and prosecuted, the civil PLAINTIFF or police and PROSECUTOR must possess enough facts that would lead a reasonable person to believe that the claim or charge is true. The probable cause standard is more important in CRIMINAL LAW than it is in CIVIL LAW because in criminal law it is used as a basis for searching and arresting persons and depriv- ing them of their liberty. Civil cases can deprive a person of property, but they cannot deprive a person of liberty. In civil court a plaintiff must possess probable cause to levy a claim against a DEFENDANT. If the plaintiff does not have probable cause for the claim, she may later face a MALICIOUS PROSECUTION suit brought by the defendant. Furthermore, lack of probable cause to support a claim means that the plaintiff does not have sufficient evidence to support the claim, and the court will likely dismiss it. In the criminal arena probable cause is important in two respects. First, police must possess probable cause before they may search a person or a person’s property, and they must possess it before they may arrest a person. Second, in most criminal cases, the court must find that probable cause exists to believe that the defendant committed the crime before the defendant may be prosecuted. There are some exceptions to these general rules. Police may briefly detain and conduct a limited search of a person in a public place if they have a reasonable suspicion that the person has committed a crime. Reasonable suspicion is a level of belief that is less than probable cause. Police possess reasonable suspicion if they have enough knowledge to lead a reasonably cautious person to believe that criminal activity is occurring and that the individual played some part in it. Police may stop a citizen on the street based on a reasonably articulable suspicion that the citizen has been or is about to be engaged in criminal activity. In such an instance, police do not need probable cause to stop the citizen. In another instance, when police have a reason- able, articulable suspicion that a citizen is armed and dangerous, they may frisk the suspect by conducting an external patdown of the outer clothing. The “stop-and-frisk” doctrine was first developed by the U.S. SUPREME COURT in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968). The requirement of probable cause for a SEARCH AND SEIZURE can be found in the FOURTH AMENDMENT to the U.S. Constitution, which states, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched. All states have similar constitutional prohibi- tions against unreasonable searches and seizures. The requirement of probable cause works in tandem with the warrant requirement. A warrant is a document that allows police to search a person, search a person’s property, or arrest a person. A judicial magistrate or judge must approve and sign a warrant before officers may act on it. To obtain a search or ARREST WARRANT , officers must present to the magistrate or judge enough facts to constitute probable cause. A warrant is not required for all searches and all arrests. Courts have defined exceptions GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 132 PRO TEM that allow police to search and arrest persons without a warrant when obtaining a warrant would be impractical. The courts have struggled to define instances in which a warrant is required and other instances when an officer can conduct a warrant- less search. To illustrate, assume that a police officer has stopped a motor vehicle driver for a traffic violation. Under the U.S. Supreme Court’s decision in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), once the officer made a lawful traffic stop, the officer could also search the passenger compartment of the vehicle without a warrant. Despite the Court’s effort to create a bright-line rule to reduce confusion in traffic stop cases, the ruling was criticized heavily in the years that followed. In 2009, the Court overruled Belton in Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485. Under Gant, the officer must demonstrate an actual and continuing threat to the officer’s safety before conducting a warrantless search of the vehicle. The officer can also search the vehicle if the search is necessary to preserve evidence. Probable cause is not equal to absolute certainty. That is, a police officer does not have to be absolutely certain that criminal activity is taking place to perform a search or make an arrest. Probable cause can exist even when there is some doubt as to the person’s guilt. Courts take care to review the actions of police in the context of everyday life, balancing the interests of law enforcement against the interests of personal liberty in determining w hether proba- ble cause existed for a search or arrest. Legislatures may maintain statutes relating to probable cause. Many such statutes declare that a certain thing constitutes probable cause to believe that a person has committed a particular offense. For example, under federal law, a FORFEITURE judgment of a foreign court automatically constitutes probable cause to believe that the forfeited property also is subject to forfeiture under the federal RACKETEERING law (18 U.S.C.A. § 981(i)(3) [1986]). FURTHER READINGS Burkoff, John M. 2000. “When Is Probable Cause Informa- tion in a Search Warrant ‘Stale’?” Search and Seizure Law Report 27 (December): 81–8. Lerner, Craig S. 2003. “The Reasonableness of Probable Cause.” Texas Law Review 81 (March): 951–1029. Weaver, Russell L. 2008. Principles of Criminal Procedure. 3d ed. St. Paul, Minn.: Thomson/West. CROSS REFERENCES Automobile Searches; Constitutional Law; Criminal Procedure. PROBATE The court process by which a WILL is proved valid or invalid. The legal process wherein the estate of a decedent is administered. When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate—without leaving a will—the court appoints a PERSONAL REPRESENTATIVE to distr ibute the decedent ’s property according to the laws of DESCENT AND DISTRIBUTION. These laws direct the distribution of assets based on hereditary succession. In general, the probate process involves collecting the decedent’s assets, liquidating liabilities, paying necessary taxes, and distribut- ing property to heirs. Probate procedures are governed by state law and have been the subject of debate and reform since the 1960s. The UNIFORM PROBATE CODE (UPC) was first proposed in 1969 by the National Conference of Com- missioners on Uniform State Laws and the House of Delegates of the AMERICAN BAR ASSOCIA- TION . The prime focus of the UPC is to sim plify the probate process. The UPC, which has been amended numerous times, has been adopted in its entirety by 16 states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. The other 36 states have adopted some part of the UPC but still retain distinct procedures. Probate of a Will The prob ate of a will means proving its genuineness in probate court. Unle ss otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedent’s property to the heirs according to its terms. As a general rule, a will has no legal effect until it is probated. A will should be probated immediately, and no one has the right to suppress it. The person with possession of a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROBATE 133 A sample order denying probate. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Order Denying Probate PROBATE COURT OF HAMILTON COUNTY, OHIO JAMES CISSELL, JUDGE ESTATE OF___________________________________________________________________________________________, DECEASED CASE NO. __________________________ INTERLOCUTORY ORDER DENYING PROBATE OF WILL AND ENTRY SETTING REHEARING FOR ADMISSION TO PROBATE The Court hereby finds that the will submitted for admission to probate in the within case does not comply with the requirements R.C. 2107.03. Pursuant to and in accordance with R.C. 2107.181, the Court hereby issues an interlocutory order denying the admission to probate of said instrument. This matter shall be set for further hearing before Judge James Cissell, no less than ten days hence on _______________ ________________________________________________, ___________, at ______________________.M. Room 101, 50 William Howard Taft Center, 230 E. 9th Street Cincinnati, Ohio, so that the testimony of the witnesses may be obtained. The Court orders that notice be given to all interested parties as set forth in R.C. 2107.181 Magistrate James Cissell, Probate Judge H.C. FORM 102.30 - INTERLOCUTORY ORDER DENYING PROBATE OF WILL 02/10/03 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 134 PROBATE will, usually the personal representative or the decedent’s attorney, must produce it. Statutes impose penalties for concealing or destroying a will or for failing to produce it within a specified time. Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. If, however, the decedent owned real property in a another state, the will disposing of these assets must also be probated in that state. To qualify as a will in probate, an instru- ment must be of testamentary character and comply with all statutory requirements. A document is testamentary when it does not take effect until after the death of the person making it and allows the individual to retain the property under personal control during her or his lifetime. A will that has been properly executed by a competent person—the testator— as required by law is entitled to be probated, even if some of its provisions are invalid, obscure, or cannot be implemented. A will made as a result of FRAUD or UNDUE INFLUENCE or a will that has been altered so that all its provisions are revoked will be denied probate. If the alteration only revokes certain provisions of the will, the remaining provisions can be admi tted to probate. All separate papers, instruments, or sheets comprising the most recent of a testator’s wills will be admitted to probate. Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alter- natives exist. As a general rule, the original document must be presented for probate. Probate of a copy or duplicate of a will is not permitted unless the absence of the original is satisfactorily explained to the court. If a prop erly proved copy or duplicate of a will that has been lost or destroyed is presented to the court, it may be admitted to probate. Some states have special proceedings to handle such occurrences. A thorough and diligent search for the will is necessary before a copy can be probated as a lost will. A CODICIL, which is a supplement to a will, is entitled to be probated together with the will it modifies, if it is properly executed according to statute. If it is complete in itself and can stand as a separate testamentary instrument independent of the will, the codicil alone can be admitted to probate. A codicil that has been subsequently revoked by another codicil is not entitled to probate. A will made in a foreign language will be admitted to probate if the testator understood what it contained and it otherwise complies with other statutory requirements. A translation usually must accompany the will. Proceedings A probate proceeding may involve either formal or informal procedures. Traditionally, prob ate proceedings were governed by formal proce- dures that required the probate court to hold hearings and issue orders involving routi ne matters. Consequently, the legal costs of probating an estate could be substantial. States that have adopted the UPC provisions on probate procedures allow informal probate proceedings that remove the probate court from most stages of the process, with the result that informal probate is cheaper and quicker than formal probate. Most small estates benefit from an informal probate proceeding. The probate process begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the will and a petition to admit the will to probate and to grant LETTERS TESTAMEN- TARY , which authorize him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who has a pecuniary interest in the will. In states governed by the UPC, the personal representative must elect whether to proceed with formal or informal probate at the time of filing. However, a probate proceeding may be switched from informal to formal during the course of administration, if issues so warrant. In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residency of the decedent, the genuineness of the will, its conformance with statutory requirements for its execution, and the competency of the testator at the time the will was made. These requirements are usually GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROBATE 135 fulfilled by the attesting witnesses who were present at the time the will was made and who certify that it was properly executed. The number of attesting witnesses is prescribed by law. If fewer than the required number witness a will, it will be declared void, and the testator’s property will pass according to the laws of descent and distribution. When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to eviden ce of the genuineness of the signatures and any other proof of execution available. The UPC simplifies witness issues by permitting the admission of “self- authenticating” wills. These wills contain a statement signed by the witnesses that attests to the competency of the testator and other statutory requirements. Self-authentication relieves the witnesses of the burden of appearing in court and the personal representative of costly procedures if the witnesses are unavailable. If no one objects to the will at the hearing, it will be admitted to probate. Informal probate proceedings generally do not require a hearing. The personal representa- tive files the death certificate and will, along with a petition to admit the will under informal probate. The clerk of probate court reviews the submissions and recommends to the court that the will be probated. Once the court issues the order for informal probate, the personal representative files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the dece- dent’s creditors have been paid, and the estate’s assets have been collected, appraised, and distributed to the designated heirs. Contested Probate Proceedings The probate of a will can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required by law, or any matter sufficient to show the nonexistence of a valid will. When a will is contested, formal proceedings are required. Will contests are concerned only with external validity, such as failure of due execu- tion, fraud, mistake, undue influence, lack of testamentary capacity, or lack of intent that the instrument be a will. Issues of internal validity, such as violation of the RULE AGAINST PERPETUITIES, must be raised in proceedings at a later stage of administration. Although a will has been probated as a genuine expression of the testator’s intended distribution of property upon her or his death, the estate might be disposed of according to the laws of descent and distribu- tion if the testamentary provisions violate the law. Only a person having some interest that will be affected by the probate can contest it. Such persons include NEXT OF KIN who will receive property if the will is set aside and INTESTACY results, purchasers of property from the heir or heirs, administrators or personal represe ntatives under prior wills, and the state, if there is a possibility of ESCHEAT, which means that the government will receive the property if no living heirs can be found. Creditors, however, gener- ally are not entitled to contest the will of a debtor. An personal representative must defend the will against attack and must employ his or her best efforts to have it sustained if he or she reasonably believes that the will is valid. Methods by which a will can be contested generally include a contest in the court having jurisdiction over probate, an appeal from the order granting or denying probate, and separate actions to set aside the order granting or denying probate. There is no constitutional right to trial by jury in probate or will contest proceedings. Most states, however, have statutes making a trial by jury available in a will contest. Statutes usually impose time limits on the institution of will contests. Agreement not to Contest A testator can enter into a contract with her or his heirs in which they agree not to contest a will. If the contract is supported by consider- ation—something of value—and the agreem ent is otherwise valid, the heirs will be prevented from contesting the will. The beneficiaries under a will and the heirs can enter into a valid contract not to contest a will. States vary as to the remedies a party to an agreement not to contest a will has upon breach. These include an INJUNCTION against the prosecution of the contest, an action at law for damages, or a defense to the contest. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 136 PROBATE An agreement among heirs and beneficiaries not to contest a will is a way to avoid a costly will contest proceeding. The heirs and bene- ficiaries negotiate a settlement that may defeat the intention of the testator in how the assets are distributed. A settlement will be valid if all interested parties agree, but it must not exclude anyone entitled to property under the will. Under some statutes the compromise or settle- ment must be submitted to the probate court for approval. Guardianship of Minor Children Wills often contain instructions on who should be appointed legal guardian of the decedent’s minor children. The probate court may investi- gate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provi- sion, the court itself must determine, based on the best interests of the children, who should be appointed guardian. Right of Review A right of appeal from a probate dec ree is given to any person who would suffer a direct finan- cial loss as a result of the decree. The appellate court is restricted to a consideration of the questions presented to and determined by the lower court. An issue not presented to the probate court usually will not be considered. FURTHER READINGS Brown, Gordon W. 2003. Administration of Wills, Trusts, and Estates. 3d ed. Clifton Park, N.Y.: Thomson/ Delmar Learning. Christianson, Stephen G. 2001. How to Administer an Estate: A Step-by-Step Guide for Families and Friends. 4th ed. Franklin Lakes, N.J.: Career Press. Clifford, Denis. 2009. Estate Planning Basics. Berkeley: Nolo Press. Esperti, Robert A., and Renno L. Peterson. 1992. The Living Trust Revolution: Why America is Abandoning Wills and Probate. New York: Viking Penguin. Foster, Frances H. 2001. “The Family Paradigm of Inheritance Law.” North Carolina Law Review 80 (December). Monopoli., Paula A. 2003. American Probate: Protecting the Public, Improving the Process. Boston: Northeastern Univ. Press. Randolph, Mary. 2008. 8 Ways to Avoid Probate. Berkeley, CA: Nolo Press. Shepherd, Thomas H. 2001. “It’s the 21st Century Time for Probate Codes to Address Family Violence: A Proposal that Deals with the Realities of the Problem.” St. Louis University Public Law Review 20 (winter). CROSS REFERENCES Estate and Gift Taxes; Testamentary. PROBATE COURT See COURT OF PROBATE. PROBATION A sentence whereby a convict is released from confinement but is still under court supervision; a testing or a trial period. Probation can be given in lieu of a prison term or can suspend a prison sentence if the convict has consistently demon- strated good behavior. The status of a convicted person who is given some freedom on the condition that for a specified period he or she act in a manner approved by a special officer to whom the person must report. An initial period of employment during which a new, transferred, or promoted employee must show the ability to perform the required duties. Probation is the period during which a person, “the probationer,” is subject to critical examination and evaluation. The word proba- tion is derived from probatum, Latin for “the act of proving.” Probation is a trial period that must be completed before a person receives greater benefits or freedom. In the criminal justice system probation is a particular type of sentence for criminal defen- dants. The judicial authority to order a sentence of probation is granted in statutes on the federal and state levels. Generally, probation allows a convicted defendant to go free with a suspended sentence for a specified duration during good behavior. Probationers are placed under the supervision of a probation officer and must fulfill certain conditions. If the probationer violates a co ndition of probation, the court may place additional restrictions on the probationer or order the probationer to serve a term of imprisonment. A judge also may order probation in addition to a period of incarceration. For example, a sentence might consist of a jail term and, after release, probation for a specified period of months or years. Probation is generally reserved for persons sentenced to short terms in jail: It is not combined with a long prison sentence. If a person is subjected to supervision after a stay in prison, the supervi- sion is conducted by a PAROLE officer. Both probation and parole involve the supervision of convicted criminals, but the systems are distinct. Probation is ordered by a judge; parole is granted by a parole board. Probation is an alternative to prison; parole is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROBATION 137 . patdown of the outer clothing. The “stop-and-frisk” doctrine was first developed by the U.S. SUPREME COURT in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 186 8; 20 L. Ed. 2d 88 9 (19 68) . The requirement of. possession of a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROBATE 133 A sample order denying probate. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Order. the taking of land. This payment is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRO TANTO 131 given WITHOUT PREJUDICE, and the petitioner can maintain an action for the full amount of the land. A

Ngày đăng: 06/07/2014, 22:20

TỪ KHÓA LIÊN QUAN