from the Ancestry Daily News
  Michael John Neill – 12/4/2002

When There is No Probate

Probate records are one of the best genealogical sources. The problem is that not every ancestor who lived left a probate record. There are several research methods that should be done when a probate cannot be located and many reasons why your ancestor might not have a probate file even when they owned property upon their death.

There Was Just Nothing To Probate
The first possibility is that your ancestor simply had no estate worth probating. There might not have even been enough money to bury your ancestor, let alone enough to warrant the necessity to probate the estate. In some states, estates with a value under a certain amount might not have even been probated. One of my relatives died in a mental institution one hundred miles from his home in the 1910s. The family did not have the money to bring the body back for burial and his body was donated to science. There is no probate file for this ancestor, nor a tombstone. I was lucky to obtain a death certificate.

Your Ancestor Intentionally Avoided Probate
Did your ancestor transfer all his property to his children before his death? My ancestor in the 1880s sold all his real estate to his children when he was in his late seventies. Upon his death there was no real property and it apparently was not worth a probate just to settle his personal effects. A search of probate records led to no results. However, there are land records documenting his transfer of his real property to his children. The price of each farm (the "consideration") on these deeds was "a dollar and love and consideration." No relationships were specifically stated, but the lack of a real transfer price was an indication of a likely relationship between the grantor and grantee.

Probate Was Delayed Significantly
I have another ancestor who died in 1893 and whose estate was never probated, even though there was significant real and personal property. When the ancestor's wife Nancy wanted to sell the farm in 1907, she was unable to do so in her own right—she was not the sole owner of the farm. Upon her husband's death, she and her children in the aggregate became owners of the farm. Nancy inherited one-third of the property (based upon the applicable state law at the time), but her portion of the farm was never specifically partitioned off. An additional complication was that one of her children (and also one of her husband's heirs and another co-owner of the farm) was a minor at the time Nancy wanted to sell the farm.

In this case, a partition suit was file by Nancy with the circuit court in order to allow the farm to be sold. A guardian ad litem was appointed for the minor son to represent his interests in this case. There was no probate of the estate in 1907; the father had already been dead fourteen years and the court was not going to begin probate proceedings that long after the father's death.

Records of courts other than the probate court should always be checked as a part of the research process. Even if your ancestor has a probate file it is possible there was some additional legal action regarding the estate that took place in a court other than the one that administered estate settlements.

There Was A Guardianship?
Is it possible your ancestor was survived by minor children and that a guardianship had to be arranged to oversee their inheritance? Perhaps the actual records settling your ancestor's estate are contained in the guardianship records and not in the probate records. Guardianship records should be searched even if the mother survived. Throughout much of American history, women have had few legal rights and they generally could not legally manage their children's interests upon their husband's death (despite the fact that the widow might have been very capable in her own right). Mothers were not necessarily appointed their children's guardian either. A male relative, neighbor, or subsequent husband might have received the honor or might have been appointed guardian in addition to the mother herself. Guardianship records should always be accessed if a person died with minor children and some real property, regardless of whether the spouse survived him/her or not.

The Tradition Was Wrong
Check out stories of great estates held by forebears—the only greatness might be the size of the story and not the property. One lady for whom I did research some years ago insisted her ancestor had a vast estate in the southeastern portion of the county where the research was conducted. That statement alone raised my eyebrows and the cynical gears in my mind began turning. No estate, guardianship, or land records could be located despite a diligent search for all reasonable spelling variants. The ancestor in question was located in the 1860 census with the wife, and the correct eight children. They were listed by the client. The ancestor is enumerated as a day laborer with $50 in personal property and no real estate. The reason for the lack of estate or guardianship records seemed fairly obvious, but was not positively received by the client. Additional and more comprehensive research may explain what appears to be an inconsistency. Family traditions are not always correct. Interestingly enough, the client still insisted there was a large farm owned by this ancestor in the county and that I simply had overlooked the records or that all the deeds, estate paper, and other documents had never been filed.

There Are Post-Death Land Records Instead
I have seen cases where an individual owned land and the only record after his death is a quit-claim deed where the heirs transferred property to another heir or to someone from outside the family. If there was nothing else to settle and the heirs agreed (a feat in and of itself), there might not have been a legal reason to probate the estate. Of course, whether or not a probate was "required" will vary among states and from one time period to another. A search of land records after your ancestor's death should be conducted to see if any such records can be located. Of course, these land references are likely not indexed under your ancestor's name (the ancestor is dead and dead people are typically not listed as grantees on land records). Searches for these records should be conducted in the buyer and seller indexes to land records for the names of all children (including married daughters).

State Statute Makes A Difference
Remember that what is generally true about probate in one state may not necessarily be true in another. Different states have different requirements about the probate process and an estate that may have to be probated in one state may not have to be probated in another.

Checking The Last Survivor?
It seems that there is a greater chance of an estate record for the surviving spouse instead of the one who dies first. While there are always exceptions to this rule, I always make certain I check for probate records for the spouse who dies last. Women are also more likely to have a probate file if they survive their husband.

Looking In The Right Place?
Estates are generally probated where the bulk of the property is located or where the person lived the latter years of their life. Are you looking in these locations? If your ancestor lived near the county line have you looked in both counties?

Is The Ancestor Dead?
Make certain you are looking in the probate index for the time period when your ancestor is actually deceased. It's usually a good idea to look in estate indexes for a time period up to twenty years after your ancestor's death. Looking in these indexes for twenty years before your ancestor died is another matter entirely.

General Probate Advice
All applicable surname variants should be included as a part of this search—do not get hung up on the "right" spelling. The earlier the record, the more likely the spelling is to be "off" and the more one has to rely on whether the name "sounds the same." Do not be surprised if no record is located. While records of probate are a great genealogical source, they do not exist for every dead person. If your ancestor does not have a probate make certain that in addition to searching all other appropriate records you have also searched for probate records of other extended family members. A probate file on another family member may be the clue you need to break that brick wall.

In future articles, we'll discuss families whose financial status causes them to fall through the cracks of many record sources used by family historians.

 

Michael John Neill, is the Course I Coordinator at the Genealogical Institute of Mid America (GIMA) held annually in Springfield, Illinois, and is also on the faculty of Carl Sandburg College in Galesburg, Illinois. Michael is the Web columnist for the FGS FORUM and is on the editorial board of the Illinois State Genealogical Society Quarterly. He conducts seminars and lectures on a wide variety of genealogical and computer topics and contributes to several genealogical publications, including Ancestry and Genealogical Computing. You can e-mail him at: mjnrootdig@gmail.com or visit his website at: www.rootdig.com/, but he regrets that he is unable to assist with personal research.

Copyright 2002, MyFamily.com, Inc.
 

Used by the author on his website with permission.