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 Probate Records for Genealogy Reference

Probate Cases
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.

Guardianship
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.

Probate Proceeding
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 will.
     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 appear.

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) ]

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SFA Series! These records are part of the "Genealogy Computer Package" *** PC-PROFILE *** Volume - II. Sarratt/Sarrett/Surratt Family Profile© Compiled and self Published in Oct. 31, 1989 by Paul R. Sarrett, Jr. with the assistance of my late mother
Mrs. M. Lucille (WILSON) SARRETT (1917-1987) The SFA "Work-Books" were compiled by "States" listing the various families, born, married, died, and a history of that family branch. In 1996 I started "Up-Loading" this material on the Sarratt/Sarrett/Surratt Families of America (SFA)© site. ..prs

Would like to Exchange and Share information on SARRATT / SARRETT / SURRATT Families, contact me at:
E-Mail: Paul R. Sarrett, Jr. Auburn, CA.

Text - Copyright © 1996-2007 Paul R. Sarrett, Jr.
Created: Dec. 01, 1996; Sep. 25, 2004;  Jun. 17, 2007;