Laymen as Probate Judges

James Findley (J.D. 2010, University of Alabama School of Law) recently published his note entitled The Debate over Nonlawyer Probate Judges: A Historical Perspective, 61 Ala. L. Rev. 1143 (2010). An excerpt from the beginning is below:

Today, lay judges are a dying breed, often relegated to serving only in courts of probate; only four states allow nonlawyers to become probate judges. In their adjudication of testamentary instruments, these nonlawyer judges oversee a diverse docket often containing sensitive family disputes. However, other than some practical instruction usually administered by the local bar, no formal legal education is required. Consequently, this arrangement is continually under attack.

Despite what the controversy of today might suggest, laymen chosen from the general community have presided over the administration of wills and estates for thousands of years. Proponents of judicial legal education requirements usually stress various benefits of completely wiping out the old system. However, if the remaining lay judge systems are counterintuitive, one wonders why they exist at all. From where did the system of lay judges come, and why has it been partly preserved? This Note will not advocate the abolition of nonlawyer probate judges but rather investigate why this system exists. Those individuals in the unique position of handling testamentary dispositions will be traced throughout history—from antiquity to modern America. The Note will attempt to extract the momentum, what has changed, and what has worked. The Note will then consider the applicability of this momentum to the modern-day argument for the abolition of nonlawyer probate judges.