Given Name(s) Last Name
 
 

from the Ancestry Daily News
  Michael John Neill 10/30/2002


Probate Process: A Broad Overview

Readers must be aware that the process discussed in this article is an overview, a summary, and a generalization made with the intent of providing the researcher with an outline of probate, the settling of the property and financial affairs of a deceased person. Governed by state statute, the process of probate varies from one state to another and from one time period to another. The one constant is that the amount of paperwork tends to increase over time.

Someone Usually Dies First
The probate process typically begins within thirty days of the decease of the individual, but there are exceptions. State statute likely indicates an amount of time by which the process must be started. In other words, an estate cannot typically be probated two hundred years after the deceased has died (if there were such a situation a court other than one of probate would likely be involved).

The steps that follow are general; different probates may have more or less paperwork, which usually depends upon the time period, the complexity of the estate, and the locality. Our intent is to give the reader an overview of the process.

Two Situations
An estate falls into one of two categories:

Testate estate with a valid will.
Intestate estate with no valid will.

In some intestate cases, a will may still be filed. The difference is that is was ruled invalid by the court. In some states, if the estate is small, the only document in the packet of papers may be the will. Every genealogist is hoping for a huge packet of estate papers for their ancestor. It does not always happen. It is worth noting that:

 

  • Earlier estates have fewer records.
     
  • Estates with less value have fewer papers.
     
  • Estates with little disagreement among heirs have fewer papers.

    Some Terminology:
    Created by courts, probate records contain a significant amount of legal terminology. A few major terms are listed here.

    Executor the person charged with carrying out the terms of a will. Some early records may use the word executrix to denote a female executor.

    Administrator the person charged with setting an intestate estate. Some early records may use the word administratrix to denote a female administrator.

    Heir usually someone who biologically is related to the deceased.

     

    Beneficiary someone whom the deceased gives property in their will.

    Of course, heirs can also be beneficiaries and vice-versa. Whenever you don't know what a term means, use a reference to determine the meaning.

    Will Brought Before Court
    If there is a will, it must be brought before the court. Witnesses may testify that they were at the execution of the document and the named executor typically brings the will before the court that handles probates in the jurisdiction. Not all wills are determined to be valid. You may find an invalid will filed with your ancestor's probate papers.

    Approval Of Executor
    If the executor agrees to execute the estate, his appointment is made official by the court (he is granted letters of execution) so he can carry out the terms of the will. There may be executor's bond, signed by the executor and his bondsmen. The bond is a guarantee that he will execute estate faithfully and not head out West with the cash, leaving the estate's bills unpaid. The bondsmen would be legally responsible if the executor absconded with the estate's funds or performed other shenanigans. Bondsmen typically knew the executor fairly well, well enough to trust him not to leave them holding the bag. Today many wills waive the bond requirement of the executor.

    No Valid Will?
    If there is no will, the principal heir (usually a son or the surviving spouse) typically petitions the court to begin the probate process. In some cases, a creditor or financial institution may file the initial petition. During much of American history, the surviving spouse had the right of first refusal to administrate the estate. If they did not wish to perform these duties a refusal document should appear in the packet of papers. In more recent estates, a proof of death may even be filed. This can be a good place to obtain a death date if a death certificate cannot be located. Early records do not typically include this proof of death.

    The Administrator
    If the executor named in the will does not or cannot execute the estate, an administrator cum testamento annexo (an administrator with the will attached) is appointed by the court and is the person who serves to execute the will. In intestate cases, the spouse or a child usually has the first right to be appointed the administrator. If the spouse and children do not choose to administrate (or are unable to do so), a sibling of the deceased may be appointed. In some cases, a creditor may act as an administrator, usually to preserve his interests. Letters of administration are granted to the administrator by the court.

    The administrator also typically posts a bond, usually with a value higher than that of the estate. The administrator's bond serves a purpose similar to the bond of the executor. Those who sign the bond of the administrator typically were confident he would execute his duties faithfully.

    What Is It Worth?
    Disinterested parties generally appraise the estate and make an inventory of the items in the estate. These appraisers may be related, but they are not to be beneficiaries of the estate. The estate appraisal may list each and every item the person owned, perhaps being so specific as to list the chamber pot. More recent inventories are more likely to refer to "junk" or miscellaneous items.

    Give Them Notice
    In more recent times, a publication notice will have to appear in the paper indicating that the estate is being probated and that claims against the estate should be filed within a specific amount of time. If this notice was required, the estate packet of papers usually contains a copy of the notice that was in the paper.

    Along The Way
    Some disbursements from the estate may be made to the heirs before the final settlement. This is more likely if it appears it will be some time before the estate is finally settled. Some items may be sold to raise money for widows and infant heirs. A guardian may be appointed to protect the shares of minor individuals. The guardian will likely post a bond and will need to have bondsmen, as an executor or administrator. Guardianship records may be interfiled with the estate records or filed as a separate series of records with a separate index. This part of the process may generate documents as bills of sale, petitions to sell real estate, intermediate accountings, etc.

    Give Me Reports
    If the estate's settlement is delayed for whatever reason, the administrator or the executor may be required to submit intermediate reports to the judge. These accountings will list receipts and expenses, perhaps indicating specifically the quantities of crops that were raised on your ancestor's farm and what those crops were worth.

    One Last Chance
    Before the estate is finally settled, the heirs of the estate may be sent a "final notice of settlement" for the estate. Generally done in the last hundred years, this document may provide the most recent list of heirs amongst all the estate papers. If the document is a notice that mailings were sent, addresses for the heirs may be listed.

    Final Report
    The administrator or executor will submit a final report or accounting to the judge. When this report is approved, the estate will be "closed."

    The Earlier The Fewer
    The earlier the estate was settled, the fewer records that will have been created. In earlier times, especially when records are only in record books and not in case file packets, one typically finds the will, executor or administrator bonds, inventories, and final accountings.

    There Are Always Exceptions
    Of course, there are always exceptions to just about everything. Keep in mind that while there are rules and laws, sometimes the court chooses to look the other way. Sometimes it is because the "violation" is extremely minor. Other times it is because someone has pulled a few strings.

    In later columns, we'll discuss additional aspects of probate records. They are among the most helpful genealogical records available and should not be overlooked.

    Additional Reading

    Source: A Guidebook of American Genealogy , edited by Lou Szucs and Sandra Luebking.

    This provides additional information on the probate process and a summary of records across the United States.

    Ancestry's Red Book: American State, County, and Town Sources, edited by Alice Eichholz

    This reference provides specific information for each of the fifty United States.

    Family History Library Research Guides.
    www.familysearch.org/Eng/Search/RG/frameset_rhelps.asp
    These state-specific reference guides provide information on the records available in each state. It is possible that the Family History Library has microfilmed records for the areas being researched. These guides are a wonderful reference for each state where you have ancestors.
     

    Probate Records



    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: mneill@asc.csc.cc.il.us 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.
     

  • Michael John Neill Genealogy Articles

    Search 1 Billion Names - Newtab2

    Genealogy Section of Ebay

    ---type in your surname or county and state in the search box that comes up on the left hand side of your screen. I've found and purchased several books this way!