The Researcher’s Guide to American Genealogy

By Val D. GreenwoodPresented byTina Sansone

Understanding Probate Records & Basic Legal Terminology – Ch 15

• Probate Records: All records which relate to the disposition of an estate after its owner’s death.

• Testate: Died leaving a will.• Intestate: Died leaving no will.

• State handles wills, laws can differ state to state.• Anyone can make a will if

• Sound mind• Legal age• Free from restraint

Content & Genealogical Value

• Died with no property – Probate records may not have direct value, but….

• Witnesses, beneficiaries, executors or trustees or innocent third parties.

• Most people either left wills or mentioned in them.

• Family oriented source

• In frontier American, wills more common than you think as these were land and property minded people.

• Land was inexpensive, so many could afford to own land.

• At a time when few records were kept, probate records are a great resource.

Limitations of Probate Records

1. Not everyone left a will, even if they had intended to do so.

2. Some wills may not mention spouses and children. Some wills mention names, but we may not know their exact relationships.

3. Places of residence of next-of-kin is rare in early probate cases.

Limitations cont.

4. Maiden names of female spouses of next-of-kin is rarely used; but names of sons-in-laws or brothers-in-laws may be mentioned.

5. Exact date of death may not be mentioned.6. If you can not find a will, do not assume

there is not one. People move, even towards the end of their life (maybe to live with a child) and their records may be there, and not where they lived most of their lives.

7. Probates are usually indexed within each jurisdictions (county), but most of these indexes are only to testators (persons who made the will) and intestates and not to beneficiaries or heirs.

Important…

Probate records were not designed as a genealogical source, but rather as a legal vehicle for settling estates in the most equitable manner and for legally transferring the deceased property rights. No original record was kept as genealogy as its prime objective. However, we must make the good of what we have available, including Probate Records.

Legal Terminology

• See pages 313-326

Probate Process

• All rights & property which a person owns or is entitled to when he dies may be dispose of by a will, subject to the payment of debts other legitimate obligation.

• Can be left to a widow, children, relatives or to strangers.

Married Women

• Incompetent to make a will of real estate (even with husband’s consent), unless previously entered into an antenuptial contract or aggrement to preserve that right.

• Could make a will of personal property with husband’s consent.

• Widow or unmarried woman could do as she pleased.

Married Women’s Property Statutes

• Women generally have had the same probate rights as men.– Exceptions: See page 327

Legal Requirements

• Of Sound Mind• Of Legal Age– Varies state to state– Currently age 18 for most states– Historically, age 21 was “legal age”, although some

states allow younger than this to make wills for personal property.

Legal Requirements cont.

• Free from restraintA will becomes invalid if:– The testator was fraudulently induced to sign a will

which he believed to be another.– The testator was deceived as to the content of the

will he signed.– A legacy was given to a person who fraudulently

assumed character not his real one.– There have been any fraudulent impositions on the

testator.

• Anytime you use probate records you will find it helpful to understand the basics of probate custom and law in the state where your problem is centered.

• Thorough research may depend on that understanding.

What About Wills? Ch 16

• Wish or a desire, but in legal terms….• Declaration of a person’s wishes or desires

concerning the final disposition of his property which if properly executed, becomes mandatory after he is dead.

• May be called testament, devise or last will and testament.

Kinds of Wills

• Come wills are comedic (See example)• Can be very long• Can be very short• See page 332-334

Proving the Will

1. The making & proper execution of the will.2. Death of the testator3. Will be presented for probate before proper

judicial authority to show it is the last will & testament of the decedent.

4. Court to admit the will to probate.

Proving Will cont.

5. Upon admission to probate & payment of small fee the will recorded & registered by the court, and also indexed to be found later.

6. Executor, with court authorization, proceeds to pay the just obligations of the deceased & have this approved by the court. “Notice to Creditors”

Proving Will cont.

7. After obligations of estate have been discharged & the Court has approved, the specific provisions of the will are carried out as stipulated by the will. “decree of distribution”

The Contested Will

If the will does not give a person what he feels he is justly due, or if omitted completely, he may look for grounds where the will can be contested, maybe the testator was not of “sound mind”.

Not everyone has a right to contest, only

those with an interest in the estate.

• The proceedings and documents created from a contested will can be a goldmine to a genealogist.

• A will is always contested in the court of original probate jurisdiction, but the final judgment of that court is appealable through regular appelate channels.

Value of Wills

A. RelationshipsB. Time PeriodC. Values that are not so obvious

A. Former places of residence.B. Can help prove connections in common namesC. Give clues about other possible recordsD. Clues as to the death date.E. Usually executors, witnesses, etc are relatives.

Record Problems

• Incomplete lists of family members• Inconclusive relationships• No relationships• Wife & children not related• Other problems

• Spelling• Nicknames• Handwriting• Legal Jargon

Finding & Using Wills

• For present names of courts and the limits of their jurisdiction – See Section VI, p. 345

• Some probate records have been published and available in book form.

• Some are abstracted, but use with caution.

Indexes

• Know the jurisdiction originally produced & recorded the will.

• Look for the index.• Some have reverse indexes based on

beneficiaries.

Last note….

Will may give clues as to your ancestor’s origin, what country did he immigrate from?

Thank you!Tina Sansone

gtownma@yahoo.com

(Will post on Slideshare.com soon)