About Debt and Probate Court

How important is the handling of debt during the probate process? Well, let’s put it this way, probate courts probably wouldn’t exist as we recognize them today if it weren’t for the question of debt after death.

Wills have been around since ancient times. They go back to the Greeks and Romans. One of the most egregious examples of dying without a will was Alexander the Great who died, perhaps assisted by one or more of his prospective heirs, unexpectedly at a young age without naming a successor. The result was forty-seven years of brutal wars among his generals and family. Not only did this have a lasting effect on history, it served as a lesson to a millennia of rulers and ‘regular’ people – get a will.

People have been making wills, then, for thousands of years. It is probably no surprise to any of our regular readers that will contests have been around every bit as long. Records in Great Britain, from which we inherited our probate system, go back to the 1200s when wills were settled by the Catholic Church. This was all well and good except for the fact that the Church could not, by law, rule on debt issues raised by the death of the testator. Those had to be handled by England’s secular courts.

It was a big deal, The problem of people dying while owing other people money has been around throughout recorded history. Even in feudal times when no one but the king owned real estate, the issue was there – people being people, they loaned and borrowed money for the same many and varied reasons they do today.

In England, the whole thing got too bulky, the process too protracted as it bounced from the Church to the courts and back. Then there was the Reformation in 1517 and England’s subsequent formation of the Protestant Church of England. A separate, all-in-on system was needed and the first probate courts formed.

The thing to remember about all this, and the reason we bring it up, is simple – in Probate debt reigns supreme. Debt has to be addressed before the estate moves forward. There’s no way around it, there’s a thousand years plus of precedence behind it.