DEFINITION OF PROBATE OF WILL AND ESCHEAT Probate is a legal document.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 persons property under a will. A probate court (surrogate court) decides the legal validity of a testators will and grants its approval by granting probate to the executor.The probated will becomes a legal document that 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 testators assets in the manner specified in the testators will. The English nounprobate derives directly from the Latin verb probare, to try, test, prove,examine, more specifically from the verbs past participle nominative neuter probatum, 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 presence of the venerableman ..... doctor of law at the Prerogative Court of Canterbury...) The earliest usage of the English word was in 1463,defined as the official proving of a will.The term probative, used in the law of evidence, comes from the same Latin root but has a different English usage. 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 tod is tribute the decedents 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 decedents assets, liquidating liabilities, paying necessary taxes, and distributing 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 Commissioners on Uniform State Laws and the House of Delegates of the American Bar Association. The prime focus of the UPC is to simplify 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 WILL The probate of a will means proving its genuineness in probate court. Unless otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedents 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 will,usually the personal representative or the decedents 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 instrument 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 admitted to probate. All separate papers, instruments,or sheets comprising the most recent of a testators wills will be admitted top 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 alternatives 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 properly 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. Escheat The power of a state to acquire title to property for which there is no owner. The most common reason that an escheat takes place is that an individual dies intestate, meaning without a valid will indicating who is to inherit his or her property, and without relatives who are legally entitled to inherit in the absence of a will. A state legislature has the authority to enact an escheat statute. In feudal England, escheat was a privilege exclusively given to the king. The policy of inheritance was top reserve the wealth of noble families by permitting one individual to inherit an entire estate. There was no writing of wills that would leave property to several heirs because that would have the effect of breaking up the estate. In addition, the law established a hierarchy of heirs who stood in line to inherit the estate. If there was no living person of a designated class to inherit, the king took the property by escheat. Historically, reasons existed for escheat apart from the absence of heirs to inherit a decedents property. When corporations were subject to strict regulation, it was unlawful for a corporation to own property in any way not permitted by its state-granted charter. Any property beyond that needed by the corporation for the operation of its business, or in excess of the amount designated in its charter, or held for a period of time beyond that which was permitted, was subject to escheat. Certain states mandated escheat of property belonging to religious societies that either promoted Polygamy or neglected to incorporate as required bylaw. Additionally, where public lands were provided for settlers, statutes frequently made provisions for escheat when one individual took possession of more than the permitted acreage or did not properly cultivate the homestead. Property Subject to Escheat Ordinarily, the property subject to escheat is all the property within the state belonging to the original ownerupon his or her death. Although initially the doctrine was applicable solely toreal property, it presently extends to Personal Property, including such intangibles as bank accounts and shares of stock.Certain other types of property can be the subject of escheat for lack of a known owner. The determination is contingent upon state law. Unclaimed or abandoned property escheats to the state under some statutes. However, the state cannot merely declare property abandoned and appropriate it. Such laws must function within constitutional limits by observing the requirements imposed by due process. The state is required to adopt a routine procedure for notifying the public and must provide potential claimants an opportunity to argue that the property might belong to them. Without declaring that certain abandoned property has been escheated, the state may lawfully possess the property and hold it for a period of time so that claims can be asserted. A state is not mandated to take over unclaimed property but may choose to exercise the power to escheat only when the value of the property does not exceed the expense of legal proceedings. Items subject to escheat under various statutes include abandoned bank accounts, deposits left with utility companies, stock dividends whose owners cannot be found; unpaid wages;unclaimed legacies from the estate of a deceased relative; insurance money to unknown beneficiaries; and unclaimed money retained by employers or public officials. Certain statutes specify that the property of charitable or religious institutions escheats upon dissolution if its donors have not retained the right to recover it when it is no longer usedfor religious or charitable objectives. Escheat n. the forfeit of all property (including bank accounts) to the state treasury if it appears certain that there are no heirs, descendants or named beneficiaries to take the property upon the death of the last known owner. Court Order SPECIAL PROC. LRC CASE NO. 997-P ESCHEATMENT PROCEEDINGS consolidated with Case No. PROBATE OF WILL 117-Q February 26, 2004 SG JUDGE ERNESTO REYES Pasay RTC Branch III Reconveyance/Quieting of Titles OCTs NO. 4136, 240, 184, 355, 374, 543, 614, 730 and 735 for the Registered owners namely: PRINCE LACAN ACUNA ULRIJAL BOLKIAH TAGEAN TALLANO, PRINCE JULIAN MCLEOD TALLANO, DON ESTEBAN BENITEZ TALLANO, DON JUAN ROXAS TALLANO, DON GREGORIO MADRIGAL ACOP WITH RECONVEYANCE FOR AND IN THE NAME OF THE REPUBLIC OF THE PHILIPPINES
Posted on: Sat, 11 Oct 2014 06:36:43 +0000
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