Wills & Probate

 Testate or Intestate• Testate (with a will)

• the document will specify and Executor or Executrix• may not list all children • wishes

• intestate (without a will).• the court will appoint an Administrator or Administratrix• usually includes death date information• names wife and lists all potential heirs• property is inherited in shares determined by relationship; sometimes the

amount inherited, relative to that inherited by others will help you establish relationships

Probate Proceedings

• Since the procedures followed in both testate and intestate cases are almost identical, both can be considered together.

• The probate process usually follows a basic process, between thirty and ninety days after death.

• The heir, creditor, or other interested party initiated the probate process by presenting a will for the deceased and petitioning the court for the right to settle an estate. This petition was usually filed with the court that served the area where the deceased owned property or last resided.

• If the individual left a will, it was presented to the court along with testimony of witnesses as to its authenticity. If accepted by the probate court, a copy of the will was then recorded in a will book maintained by the clerk of court. The original will was often retained by the court and added to other documents pertaining to the settlement of the estate to create a probate packet.

• If a will designated a particular individual, then the court formally appointed that person to serve as executor or executress of the estate and authorized him or her to proceed by issuing letters testamentary. If there was no will, then the court appointed an administrator or administratrix - usually a relative, heir, or close friend - to oversee the estate's settlement by issuing letters administration.

• Many cases, the court required the administrator to post a bond to ensure that he would properly complete his duties. One or more people, often family members, were required to co-sign the bond as "sureties."

• An inventory of the estate was conducted, usually by people with no claim to the property, culminating in a list of property - from land and buildings down to teaspoons.

• Potential beneficiaries named in the will were identified and contacted. Notices were published in area newspapers to reach anyone who might have claims on or obligations to the deceased's estate.

• Once bills and other outstanding obligations on the estate were met, the estate was formally divided and distributed among the heirs. Receipts are signed by anyone receiving a portion of the estate.

• A final statement of account was presented to the probate court, which then ruled the estate as closed. The probate packet was then filed in the records of the court.

Dower and Curtesy

• A woman has a dower right or life-estate, usually in one-third of her husband's real property. This right must be legally recognized in all transactions, including transfers of land. A man has the right of curtesy-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 had at least one living child who could inherit from them. Otherwise, he has a right to one-third of her property only.

Marriage settlements contracted before the time of marriage can change these provisions.

Guardianships • There was a time in America when women had few legal rights. If the

father died with minor children and the mother survived, a guardianship might have been filed. Guardianship records may be filed in a separate series of records, with the probate records, or with other court records. Guardianship records may provide names of the children or their dates of birth.

Court Minutes• All actions of the court are briefly recorded by the clerk in the minutes. Though rarely indexed, minutes

are valuable. Where dockets and indexes are missing, minutes will identify terms of court where an ancestor's cases appear. Early courts tended to meet every three months for a week or until business was completed. The minute books generally record the term of the court ("June term"), the month and year of meeting, and the place of sitting. In colonial days and on the early western frontier prior to the building of a courthouse, the court could be held in a private home or a business establishment, such as a tavern. The names of the justices present were next recorded. At the end of the court's term, the clerk's signature would appear, followed by "CC" (Clerk of Court).The justices often signed as well, to authenticate the minutes.

• Court minutes at the county level will reflect a variety of matters. Minutes will include civil suits, criminal cases and the settlement of estates. In addition, the following may appear: the appointments of officeholders, overseers of the poor, coroners, justices of the peace, jurors, and tax officials; the issuing of business licenses for ferries, mills, and taverns; the consideration of reports and petitions; coroners' inquests; appointment of guardians for those unable to manage their own affairs; matters concerning taxes and public buildings; land matters, etc In short, the full range of court activities will fall within the recorded minutes. The minutes may not always be complete enough to include the names of all witnesses and jurors; however, it is far easier to search through unindexed minutes than it is to examine the individual papers filed in each case file for each term of court.

• Not everyone in the United States wrote a will or went through probate. Nearly 10% of the pre-1900 adult population made wills, usually males with property. Before 1900, about 25% of estates were probated, even though no will had been written.

• However, this percentage is higher for rural areas because that is where the land was owned. If your ancestor owned land, search for probate records to see how their land was distributed at their death. If your ancestor owned land in more than one location, look for probate records in each of those locations.

• There are not as many probate records for women, but if the woman was single, widowed, or divorced, it is more likely that she would have had property that would have gone through probate.

• If there are no probate records for your direct ancestors, look at the probate records for your ancestor’s relatives, including siblings, children, parents, and especially unmarried aunts and uncles, as your ancestors may have been mentioned in their relative’s probate records. Since many family members were mentioned in each probate estate, the chances that some of your ancestors appeared in a probate record is fairly high, making probate records worth searching.

• The single most important value of probate records is the proof of relationships. In a will, people are identified as a wife, son, daughter, nephew, niece, brother, sister, etc. If there is no will, the distribution is made by the court to the heirs who are usually family members.

• Other helpful and interesting information that may be learned from probate files are: date and place of death, name of the spouse and other possible family members and relationships, location of the heirs, property ownership, and guardianship of minor children.

• An inventory of your ancestor’s personal belongings would be made and debts would be paid out of the estate, revealing your ancestor’s economic standing.

• Probate is under the jurisdiction of the state government who establish the probate laws for their state, but probate is administered at the county level, and it is important to know what laws and records are kept for the state you are researching. Some colonial records were kept by the town or colony.

Chancery Records• These types of court documents are useful when researching

genealogical information and land or estate divisions and may contain correspondence, lists of heirs, or vital statistics, among other items. Cases in chancery often address estate and business disputes, debt, the resolution of land disputes, and divorce.