Research In American Probate Law

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The new genealogist should be aware of issues with probate records that can lead them down the wrong path. One of these issues is contemporary law. Although probate laws are set and governed by each state, there is one overarching federal law: The practice of primogeniture, which is automatically giving a landed estate to the eldest son, is forbidden. This had been revoked by all former colonies by 1811. It is useful to know what state laws existed during the time your ancestors lived there. You can find the laws for several American colonies printed in an eighteen volume publication by Michael Glazier, Inc., 1210 King St., Wilmington, DE 19801. Most law libraries are open to the public and will carry copies.

You can also use law libraries to trace the history of certain laws. To make sure you understand the actual law that governed the jurisdiction and the time period, you should consult the state law codes at the law library. Laws such as specific dower rights or the qualifying age for a minor to create a will can change over time. To find the correct law that governed the time period of your ancestor’s death, first consult the current law code (such as dower rights, or the qualifying age to engage in legal transactions). Get the reference to the next earliest code before it was modified and work backward in time until you find the law that existed at that time.

This may sound like a lot of work, and it does take a lot of time. However, sometimes it is necessary and it almost always sheds new light on your research. Many specific details are determined by the law in the probate process, and it isn’t explained by court officials in the record. It is assumed that the law is known and understood.

You can encounter other issues if you focus solely on the probate packet or case files. There are other records that lead to probate but exist in other courts that are just as important. One example could be a court that declares the mental competency of individuals before the probate court assigns guardianship.

The separation of records by these proceedings could be the reason you are able to find any records if there was a courthouse fire. When some documents are held in another building, all is not lost by unfortunate destruction. Sometimes these records are used legally in lieu of probate processes.

Another issue is the absence of wills and inventories altogether. Research on demographics in New England found that the amount of males in the population that were included in inventories is below fifty per cent. Less than forty per cent had a will. This percentage was significantly lower in some areas. It is also lower among women, with less than ten per cent having an inventory or will. Sometimes this was because of a lack of property, and sometimes it was a deliberate dodge of the probate court.

Probate records are not consistent about listing specific death dates. Sometimes probate records include the date of death. Indexes might list the death date instead, and it is left off of the actual probate record. If there is no date of death, the date of that the witnesses testify is usually the first record made in the probate process, followed by the admission of the will to probate. However, in some areas, the testament of the witnesses occurred when the will was written instead of after the death of the person. To eliminate confusion, the best date to use for consistency is the date the will was recorded, which was between thirty and ninety days after the death of the testator.

Often the relationships between heirs and testator were seldom defined. Therefore, brothers and nephews can be mixed up with sons, sisters-in-law and daughters-in-law look the same as unmarried daughters, and daughters who do not have married names listed might be unidentifiable. Sometimes only first names are used. Adding to the confusion, “In-law” was often a synonym for “step” and adopted kin. It is important to find evidence to back up relationships defined in a will.

Probate records can also help you decipher those relationships with the following insights:

  • If the record is in a state that allowed the eldest son a double portion, an estate with five shares had four heirs, not five.
  • A daughter could be unmarried at the time a will was drafted but married by the time it was probated. The will and the probate documents will show different names. Pay special attention to given names, and be sure to check all males listed in the final settlement, particularly of you don’t see them in the will, as potential sons-in-law.
  • Statements like such as “my daughters Ann and Katherine have five hundred dollars each with what I have already given them” and “my daughter Amy shall have twohundred dollars to make her equal with her sisters” are clues that some daughters received their inheritance when they were married.
  • Bondsmen who are listed are most often relatives. They also had to be willing to take on the risks, so they usually had some kind of leverage over the person bonded. The bondsmen for a wife who is serving as executor are almost always her relatives. You can verify this if you know her maiden name and can compare it with the bondsmen.
  • Marital status can be determined by unrecognized terms. An unmarried woman can be referred to as a “a femme sole,” while a married woman can be called a “coverture.”
  • If a will names two executors, it is usually because a relative from each side of the family, the testator and the spouse, where chosen to balance the interests and feelings of relatives.
  • When the court has to settle a dispute on who will inherit, the inheritance will usually go to heirs who are related to both sides of the family (whole blood) instead of heirs who are just related to one side (half blood). This is to ensure that the property stays in the family. However, special circumstances can cause a different decision.
  • A guardian is usually a relative, but someone who is not an heir to the estate. Some investigations can help you identify the relationship and possibly discover a missing surname.
  • Because a remarriage of a widow would cause the estate to fall under her husband’s stewardship, a second marriage of the widows is usually documented in probate and guardianship records. This is another valuable aspect of research into probate records.
  • If family members are already being provided for, they might be omitted from a will. A jointure can be settled between a man and his wife at the time they are married to replace dower rights or other claims against the estate. When the eldest son was automatically given a double portion, most often during colonial times, he might also be omitted from the will. Most men in America also owned other property that younger sons could inherit.