Probate Records
Testate and Intestate probate records
Probate records are the most important records to be used in learning about your ancestors and their families. This is the only type of legal record, other than land transfers that come directly from a person. If that person died with a will, it will generally provide a good deal of information about that person and their family, their relationship with the family, their economic status, and their final wishes as to the disposal of the assests he or she possessed at the time of death. If you find some family member omitted, there could be several reasons for this; first, there may be an estrangement from that person, second, the omitted person may have been given their share in real or personal property or prior to death of the testator. You may also find heirs that you did not know about; an example being: Joe and John Smith, sons of my deceased daughter, Anna. This would imply grown children of a deceased child and lead to you a different branch of this family.
To get the most out of courthouse research in probate records, you must first understand the terminology generally used. The probate court is the legal body used to distribute any proceeds from an estate; from real or personal property. This distribution is made either from the directions of a will or of the probate court.
Too many people write to courthouses and simply ask for " the will of " and get a reply that there is not a will on file, leading you to believe that the person died elsewhere. Court house clerks are there for current business, so when your letter/query arrives, they check a will index, the name is not listed and that is it. Once in a while, some nice clerk will carry this a little further and check beyond this.
Estates admitted to probate court, may be admitted as either one of the following; testate or interstate. The procedure of getting an estate admitted to and under the probate court for either one are esentially the same, with some differences in the beginning.
1. A person died testate. What does the word testate mean? " Simply put, it means a person who made a will before the demise". That person is then called the testator and will be refered to as the testator or the deceased.
2. A person died intestate- just the opposite- a person died with having made a will or a having a valid will, who will also be referred to as the decendent or the deceased.
When a person makes a will, it is usually presented as 'my last will and testament", and could have codicils added to it after the original document was made, signed and witnessed. It is very importance to pay attention to the witnesses of a will, they frequently are members of the family, and infrequently will be female. Frequently, wills are signed by male members of the family, including, but not limited to brothers, nephews, husbands of daughters, cousins, etc. The surname maybe different, but there may still be a relationship.
If a codicil is added, it will change or add to the original will. Normally, this is a minor change. In the event that there are great changes, a new will could have been made, dated, wittnessed and signed, taking precedent over the earlier dated will.
The date of a will and the date of this will being admitted to probate, can vary greatly. The admission to probate gives a closer date to the demise of that person. A will signed dated 1824- probated 1831- obviously was some 6-7 years old at the time of death.
The date of a will and the date of this will being admitted to probate, can vary greatly. The admission to probate gives a closer date to the demise of that person. A will signed dated 1824- probated 1831- obviously was some 6-7 years old at the time of death.
Once in great while, you will find a will signed by someone else, at the request of the testator and that signature and statement witnessed as a true and accurate and presented to the court with this information. This would indicate that the person was unable to actually sign, even an "X" as a mark. Death usually occured that day or within the next 24/48 hours.
When a person died testate, it is the responsibilty of the heirs to present the will to the court. and petition the court to accept the will as written, usually this is done timely, or as soon as possible. The will is usually presented to the court by the person[s] named in the will as the administrator/executor. The court will hear the petition, call the wittnesses, examine their statements and admit the documents to probate. A will can be a very large or very small document, depending of the size of the estate. If it is a very large estate with land and personal holdings, ther may well be more than on executor. If the estate remains open over a period of several years, the administor of the estate could change, more than once.
If there are minor children involved as heirs, usually, you will find a court appointed guardian for each child. At times, it will be the same person, other times, more than one guardian. On occasion, when both parents are deceased, the guardian will also house the child, and bill the estate for food, clothing, schooling, etc.
The court examines the document,[will] and the statements of the witnesses, and if all is in proper order, instructs the clerk to admit it to probate. The court may also request that the executor/executrix post a bond, unless the will specifically states the desire to not subject the administrator to posting bond. The bond is simply what it says; the administrator will faithfully preform the duties and report to the court as frequently as the court desires. The term administrator is used more often in intestate files.
The next normal step is for the court to appoint appraisers of the estate, [persons with no legal interest in the estate] and to make a list of all assests, real and personal, and this is sent back to the court and should be part of the probate packet. In estates with very little, the assests might be 2 horses and a gold watch and a bible. The appraiser must determine the market value of property, both real and personal. [Today, this would not be considered any estate, but then, anything that had value was an estate. It was important to the era.]
If the estate is sizeable, and the will has dictated that part or all of it be sold [ usually will also dictate what to do with the money after a sale], then there will be list of personal property sold, to whom and the amount of each sale. The date wiull be set, the sale advertised, the court notified of the sale Usually an auction type sale, but once in a while, something is sold privately.
The administrator must advertise, as the administrator, that all claims made against the estate must be presented in a certain time period. Normally, this advertising is made in a public newspaper.
At the end of disposition of real or personal property during the year, and with monies or property remaining in the estate, there will be an annual settlement made to the court. This will describe all monies taken in to the estate and the claims made against estate, plus anything paid out of the estste with prior approval.There will claims made against the estate for many things. Anything from upkeep of the widow and minor children, doctor bills,store accounts, land taxes or the cost of the coffin. Each claim will go to the court and be part of the permanent record. All receipts are to be submitted to the court and they are kept as part of the probate file.
Each claim will go to the court and be part of the permanent record. All receipts are to be submitted to the court and they are kept as part of the probate file.
In most states, there is a widow's dower right. Some dower rights entitled the widow to a certain portion, and also children would be entitled a a certain percentage of the estate, if the will is not equable to state law, or the decendent died intestate. Some willls left the estate directly to the widow, other allowed her the use of it for her life time. with any proceeds to be distributed after her death. Because of the various laws from state to state, regarding the rights of women to hold property, you must do some research on the property laws in that state at the time of final closing the estate.
Following the notification by the executor, executrix or administrator to the court that all bills are paid, all monies and debts are collected, the court will then determine that it is time to close out the estate and to properly divide the real estate, personal property and money in the estate between the designated heirs, whether they are named in a will or by affidavit from the administrator as being the heirs of:
In reviewing a probate record, it is wise to check all receipts and papers contained in the probate file against the court record books. Paper is easily lost or stolen, and the court records books may contain information not still remaining in the packet.
Some things to look for in a probate packet of original papers:
Is the will loose paper in the file- does it have the decendent's mark or signature- is the handwriting consistant from page to page, if it is a multiple page will- keep copies to compare with other hand writing that you may have or will obtain in the future. Even if it is only an "X" or mark.
If you know nothing at all about this ancestor, there are certain little clues that will give you some insight. If the will starts with the "In the Name of God, Amen", you know he/she was not quaker.
If it mentions "infant children', this usually meant children under the age of fourteen. Who may later request a different guardian or marry and their spouses sue the estate on their behalf.
Remember, the wife named in the estate may not be the mother of the children of the deceased
Property mentioned in a different location may be a lead to prior residence, lands inherited, or lands received as part of a military service to the US.
Last, check the court records to see if this will was contested or if the executor, executrix or administrator was directly sued by an heir or the spouse of an heir. This not always reflected in the probate file. Such suits may have been filed in a different court and location. Example would be an estate filed for probate, with a will, in Culpeper Co., Va., A law suit filed in the District Court which met at Fredericksburg, Va., an independent city, against the administrator, not against the estate.
12/18/2000 Betty Brooks