Probate cases are distinctive enough to be discussed separately
from civil, criminal, and equity proceedings. The records they
generate are among the most valuable genealogical materials we
have in America. They are also among the most complicated, filled
with pitfalls for the unwary.
The probate process transfers the legal responsibility for payment
of taxes, care, and custody of dependent family members,
liquidation of debts, and transfer of property title to heirs from the
deceased to an executor / executrix (where there is a will), to an
administrator / administratrix (if the person dies intestate - without
a will), or to a guardian/conservator if there are heirs under the
age of twenty-one years or in cases where a person has become
incompetent through disease or disability.
Testate Estates (With a "Will")
When a person makes a last will and testament, he/she leaves
a "Testate estate". Originally, a will devised real estate (or land) and
property attached to it-buildings, mills, timber, water rights, etc.
A testament bequeathed personalty (personal property) made up
of movables (lump sums of money, books, jewelry, furniture,
clothing, horses, cattle, pigs, sheep, grain, tools, slaves, services
of indentured servants) and receivables (book debts, mortgages,
bills of exchange, and loans). American laws generally leave a person
free to distribute his/her estate at will as long as it does not
leave the heirs dependent for their upkeep on the state.
Wills are of three different kinds:
(1) Attested wills are prepared
in writing, signed by responsible witnesses who certify to the court
that the will was written at the instance of the deceased of his/her
own free will and choice and that he/she was of sound mind at the
time he/she did it.
(2) Holographic wills are written completely in
the handwriting of the person making the will, signed, dated, and
not witnessed. If any other person writes on the will, it is invalid.
In addition, the will must be found among the individual's important
papers. It cannot be filed with an attorney or other third party unless
all valuable papers are so filed. In some jurisdictions, this kind of
will is not valid.
(3) Nuncupative wills are oral, death-bed wills dictated to witnesses
who convert them to writing at the earliest possible moment and present them to the court within a specified period
of time after the person dies. In some jurisdictions, this kind of will is also invalid.
Intestate Estates (With OUT a "Will")
When a person dies without making a will, his/her property
becomes an intestate estate. It is divided according to settlement
shares determined by law. In most states, if the deceased is a married man,
the widow receives one-third (known also as her dower rights) and the rest
is divided equally among the children. If a child
is dead, his share is divided among his own legal heirs. An illegitimate
child is entitled to inherit from his/her mother; unless the father
has acknowledged his parenthood in writing, duly witnessed and
accepted by the court, or unless he later marries the mother, a
child cannot inherit by law from the father. Some states allow the
father to petition for a legislative act to legitimize his children so
they can inherit, and some allow naturalization of deceased persons by
special act so their heirs can inherit.
If a person dies without issue, his/her estate passes to his/her
spouse and if he/she has no spouse, then to his/her parents and
brothers and sisters. In some states, descent of property goes no
further than this. In some, lines of descent become quite complicated
with provision even for nephews, second cousins, and others.
In community property jurisdictions (Louisiana, California,
Washington, Idaho, etc.) the property that a husband and wife own
at the time of marriage and the property that each individually inherits
afterwards remain separate property; the property which
they acquire together during their married life becomes community property
in which each has an undivided one-half interest. Upon
the death of one, the common estate automatically reverts to the
surviving spouse in fee simple.
In noncommunity property states, a woman has a dower right
or life-estate in one-third of her husband's property. This right must
be legally recognized in all transactions including transfers of land.
A man has the right of curtesy or a life-estate in any property his
wife owned when they married or in any she inherits in her own
right during the marriage, providing they have at least one living
child who can inherit from them. Otherwise, he has a right to one-third
of her property only. Marriage settlements contracted at
the time of marriage can change these provisions. Under recent
legislation, however, a woman has the right to renounce her dower
claim to her husband's estate. She must acknowledge that full
disclosure of the total worth of the estate was made and she
understands what she is renouncing. This protects the estate against
undue litigation. A man cannot legally disinherit his wife and leave
her destitute, on the public's mercy. In most jurisdictions, welfare
help is denied, even in cases of divorce, if the husband is in a position to pay for the wife's upkeep.
A guardian is a responsible individual of legal age appointed or
acknowledged by the court to manage the property ownership of
those incompetent by reason of youth or mental or physical handicap
to handle their own affairs. A guardian may also be called a
conservator, a curator, a tutor, or a receiver.
An orphan is a minor whose father is dead or whose deceased
mother left separately owned property to her child but excluded
the father. In both cases, a guardian is appointed to assume the
legal responsibilities of property ownership. In other words, the
"orphan" may have a living parent in either case. Such a child may
also be called a ward or infant. It is also common for a mother or
father to be appointed guardian of his/her own children without implying
adoption, formal or otherwise.
The appointment of a guardian for a minor may be a separate
court process from probate, handled by a different court. The appointment
of a guardian for an adult who is incompetent to handle
his/her own affairs may require two additional court processes-
depending on the jurisdiction, the first to declare him/her incompetent
and the second to appoint someone to act in his/her behalf.
Since the procedures followed in both testate and intestate cases
are almost identical, we can consider both together. Most states
require that probate begin the first term of court following the death
of a property owner, between thirty and ninety days after death.
1. Usually the principal heir petitions the court for authority to
begin the probate process. Until recent years these petitions were
made verbally and recorded only in the probate minute books;
however, some jurisdictions require written petitions bearing the
name of all heirs, their residences, and their ages, and these are
filed with the original estate papers. Such petitions are especially
valuable because this may be the only place all the heirs are listed.
(See: Figure 6-8.) for an example of a petition to commence probate.)
In a testate estate, the executor petitions for letters testamentary
or authority to probate the will. In an intestate case, the surviving
spouse or oldest son normally petitions for letters of administration
or authority to administer the estate according to the laws of the jurisdiction.
It is the responsibility of the executor or the administrator to
look out for the best interest of the estate, the needs of the heirs,
and the claims of the creditors.
2. Proving the will is a step that applies only to testate cases.
The document is presented to the court. The witnesses to the will
appear and attest that they saw the individual sign the will, that
he/she was in sound mental condition and that he/she expressed
his/her own free will. The court, after hearing this sworn testimony,
will order that the will be recorded. Wills judged invalid are not
proved and, hence, not recorded in the will book but can often be
found among the loose or miscellaneous papers of the courthouse
or town hall. They will not appear in the index to probate records,
and they are rarely microfilmed. You have to ask for these records
to be searched at the courthouse.
Some jurisdictions require that all heirs of the estate be notified
and present at the reading and recording of the will. If any one has
argument against the admission of the will to probate, he/she may
make claim then or generally forfeit any future right to contest the
3. The executor designated in the decedent's will must be formally
approved by the court; and, in intestate cases, the court appoints
the administrator. Each state prescribes the order in which
persons are entitled to be appointed, but in general this order is
maintained: spouse, one of the children, parents, grandparents,
brothers or sisters, uncles, aunts, nephews, nieces, great-uncles,
great-aunts, first cousins, creditors, anyone legally competent,
public administrators, etc.
4. An administrator must post a bond equal to the worth of
the assets of the estate to insure his/her faithful performance of
duty and protect the heirs in cases of misconduct. In most states,
an executor is not required to file a large bond if the decedent's
will exempts him/her from that trust.
Bondsmen were usually relatives or family friends until recently,
when bonding companies replaced personal sureties. If the wife
is executrix, the bondsmen will usually be her relatives. If a brother
or son is executor, they will be chosen from the family of the deceased.
Bondsmen can also be heirs to the estate.
5. In most testate and all intestate estates, three disinterested
men (often relatives who are not potential heirs) are appointed by
the court to inventory and appraise all the property of the estate.
They are usually ordered to submit the inventory at the next term
of court or within ninety days. (See Figure 6-9.)
This inventory protected the executor or administrator from excessive claims
against the estate and protected heirs against fraud or pilfering of
their inheritance. The court used it to set probate fees as in modem
practice. As a result, the values given to each item were close to
current market value although there seems to have been a tendency
to keep them low. Thus, the fees levied against the estate
were lower and the sale of items at auction were ensured.
6. As soon as the inventory is made, publication of the pending
probate is published. In early times, notices were tacked on
the doors ofcourthouses, townhalls, churches, etc. Later, the court
required public posting at the town hall and publication three successive
weeks in the major county, town, or district newspaper
before probate to give interested parties opportunity to be present to
voice disagreement or to present claims against the estate.
The law required preservation of those publication notices. Some
jurisdictions keep copies of the newspapers at the county courthouse
or town hall in which notices appeared, while others clip
the notices and preserve them with the case packet. It is thus possible
to find missing issues of newspapers at the probate authority.
7. Another step taken before probate begins is assigning an
allowance for the dependents from a portion of the estate (usually the amount is determined annually)
until the estate is settled and distributed. It may take the form of cash, income-producing property,
like a herd of cattle, or money from the court-authorized sale
of certain property. Usually the property so designated is exempt
from creditor's claims. At this time, also, the widow's dower right
will often be set off to provide for her support.
8. In estates involving minors or incompetent individuals, a
guardian is appointed to receive and assume stewardship over their
respective shares. (Figure 6-10) is a petition of minor children for
their mother to be appointed guardian. As with administrators and
executors, guardians must post a bond equal to the worth of the
orphan's estate. (See: Figure 6-11) is an example of the required bond.
9. To raise funds for the support of the widow and children
or to convert perishables to cash, it is frequently necessary to conduct periodic sales
of property under the surveillance of the court.
First, the administrator/executor or guardian petitions the court
for authority to sell, stipulating the items, why the income is needed,
and how much he expects to realize. If the court authorizes
the sale, a public auctioneer is appointed and a careful account is
kept of what was sold, how much each item brought, and to whom
the item went.
10. In some jurisdictions, executors/administrators or guardians
must account annually to the court for income received and expenses paid out of the estate,
and for what purposes. In others, executors may only be required to account upon request from heirs
or creditors. Because these records show heirs who die and women
who marry before final settlement, they are extremely valuable for the genealogist.
11. Prior to the final settlement and distribution of the estate
among the heirs, additional publication notices are issued to give
claimants one last chance to voice their desires.
12. The executor/administrator must make a final accounting
of receipts and disbursements of the estate before the remaining
property can be divided and the responsibility ended. (See: Figure 6-12)
shows a final accounting.
13. When all parties concerned come to an agreement or when
all heirs are twenty-one years of age, the property is divided and
distributed to those heirs entitled to receive it; the case is closed;
and the executor or administrator is released. In many probate
jurisdictions, lengthy division documents will be found listing all heirs
and their addresses, husbands of female heirs, and second mar
riages of widows. In some states, these settlement documents are
found in the office of the land recorder-Division of Real Estate
as (See: Figure 6-13) shows.
14. As each heir receives his/her portion of the estate, he/she
signs a receipt or release to the executor/administrator. These
receipts give the name of the heir, the amount and description of
property received, the name of the executor/administrator, the
names of guardians of minor children, and the name of the deceased
These releases are filed among the original estate papers. (See Figure 6-14.)
In this case, the cancelled checks act as the release of heir;
in this probate case and provide the cities of residence of the heirs
Among those in this probate are Davenport. Council Bluffs, Somers
and Deep River, Iowa; Cleveland, Ohio; and Brainerd, Minnesota
Probate records can provide an intimate glimpse into the life
style of your ancestor and specific facts about the family. From
wills you can discover how often the men on your pedigree entrusted
their assets to a wife, whether all sons inherited equally
how the daughters fared in comparison, whether a man distribute
his property to his children before his death, and who was instructed
to care for the widow and younger children or for incapacitated or
handicapped family members. Servants were sometimes released
by will and slaves freed.
What provision is made for the widow? Firewood delivered to
her door? Living quarters and a cash allowance for needed purchases?
Does the allowance end on remarriage? What happens to
her portion of the estate if she remarries?
What are the demographics of your family? Who lived in the
household? What was the ratio of adults to children, males to
females? Did the men live to see their grandchildren? Did women
outlive their men? How many children reached adulthood before
their parents died? What were the sizes of your family units?
What standard of living did your family have? Did they read and
write? Did bequests include paintings, family Bible, fine furniture,
a carriage, or musical instruments?
Also revealed in a will is biographical information: title, occupation,
religious affiliation, age, place of residence, place of property
ownership, associates of the family, and relationship to prominent
families in the area.
Did your ancestor bequeath assets to charities like schools,
hospitals, churches? Did he make a contribution for the upkeep
of roads and bridges? Did he support a political party?
How did your ancestor speak? Indications of local dialect and
pronunciation can be found in spelling variants, especially when a
will is a holograph. It can also reveal personality, character, and
level of formal education.
The probate inventory gives other insights into your family's
life and how your family compared to others in the community.
(See Figure 6-15.)
Where items are listed room by room and the
rooms labeled, you get who slept where. A man was often judged
by the kind of bed he slept in, so inventories usually listed bed and
bedding in considerable detail: bed curtains imply a canopied bed
to keep out cold drafts. Featherbeds, sheets, coverlets, blankets,
and spreads may also be listed separately.
Table linens may be listed (damask, diaper, flaxen, canvas); cooking
utensils and dishes (pewter, wood, china, porcelain, silverplate,
brass); lighting (candles, lamps, wicks, lantern glass, and lighter
fluids). In poor households, a clock may represent almost a quarter
of the estate's total value. Pots and pans may be valued by weight,
since that is the way they were bought and sold. Unknown objects
like kimblins, piggins, and eshons (cheese vats and presses) may
The processes of cooking, brewing, baking, dairying, and
washing are described in the kinds of utility tubs and bowls used.
The presence of smoothing tables or boards and flat irons indicate
that clothes were ironed before wearing, and bedding may also have
been "smoothed." Sanitary facilities inside the house could consist
of chamber pots and close stools, often both. The larder hints at
diet-butter, cheese, ham, bacon, hanging beef, salt pork, and
potatoes. Particular trades or occupations emerge from tools, mercantile
inventory, record books, contents of barns, granaries, and
crops standing in the field.
A comparison of inventories from one generation of the family
to another will show improvements in living conditions from fireplace
cooking to stoves, from enclosed bedsteads to heated bedrooms,
from wooden platters to china. Glass in windows, unless bequeathed
as heirlooms to a family member, could be sold separately from
the house, so panes may be listed in the inventory too.
Sometimes an item will be missing from an inventory because
the owner gave it away before his/her death, it was sold to cover
debts prior to death, or because it is specified in the will and falls
in the executor's charge. Some inventories will end with "things unseen or forgotten,"
a category with an arbitrary dollar value assigned.
An inventory is also useful for distinguishing between persons
of the same name by matching inventory contents like horses, cattle,
and pigs with tax rolls and agricultural census entries. You can
also prove the relationship between a man and his children with
property, real or personal, listed in inventories and wills from one
generation to the next.
[Source: The SOURCE, A Guidebook of American Genealogy"
by Arlene Eakle and Johni Cerny; Pub. Ancestry Publ. Co., Salt Lake City, Utah, 1984.
(Pages 177, 183) ]