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.
Earlier estates have fewer records.
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
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:
Estates with less value have fewer papers.
Estates with little disagreement among heirs have fewer papers.
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
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
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.
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
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.
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
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
This reference provides specific information for each of the fifty United
Family History Library Research Guides.
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.
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:
visit his website at: www.rootdig.com/,
but he regrets that he is unable to assist with personal research.
Copyright 2002, MyFamily.com Inc.