Probate Proceedings

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Both testate and intestate cases follow a process that is almost identical. Therefore, these types of cases can be reviewed at the same time. In most states, it is standard to begin probate during the first court term after the death occurs, which usually falls between 30 and 90 days from the death.

In most cases, the principal heir files a petition with the court to be given permission to start the probate process. Previously, these petitions were verbal and were documented in minutes. Now, some jurisdictions require a more formal petition, listing in writing the heirs, places of residence, and their ages. If it is a testate estate, it is the executor who petitions the court. The executor files for letters testamentary, which grants authority to probate the will. In an intestate case, this is usually done by the surviving spouse or oldest son. He or she will petition for letters of administration, which grants authority to administer the estate according to existing jurisdictional laws. Both the executor and the administrator are given the task of looking out for the best interest of the estate, including the needs of heirs, and the repayment of debts.

The next step is only necessary in a testate case. It is called “proving the will.” When the documents are presented, the witnesses who signed them testify that the deceased signed the document willingly and was in a sound state of mind when the signing occurred. The court will then order the recording of the will. If a will is determined to be invalid, it is not recorded and will not be indexed in probate records. However, it might still be found in the loose papers carried by the courthouse or town hall. They will not appear in the index to probate records, and they are rarely microfilmed. You can request that these records are searched at the courthouse. In some jurisdictions, the will cannot be read and recorded unless all heirs of the estate have been notified and are present. This is the only opportunity for someone to argue against the admission of the will to probate. After the reading the right to contest the will is usually forfeited.
The executor or administrator are formally approved or appointed. The executer is designated in the will in testate cases, and in intestate cases the administrator is appointed by the court. Each state has a designated order for appointing the administrator. While this can vary, it usually follows this order: spouse, one of the children, parents, grandparents, brothers or sisters, uncles, aunts, nephews, nieces, great-uncles, great-aunts, first cousins, creditors, anyone legally competent, public administrators, etc.

To insure that the best interest of the estate and the heirs is upheld, a bond equal to the worth of the assets of the estate must be posted by the administrator. This helps to protect those inheriting from misconduct. However, the an executor is not required to post a bond in most states if they are exempted from that requirement in the will. In the past the bondsmen used were usually relatives or friends of the family. However, personal sureties have often been replaced by contracts with bonding companies in more recent years. The bondsmen will usually be a relative if the wife is the executer. If the executor is a brother or son, the bond will be issues by someone chosen from deceased’s family. Bondsmen can be heirs to the estate as well.

Next is the inventory and appraisal of the estate, including all property. This is usually done by three people who do not have an interest in the estate who are appointed by the court, and it is done for most testate and all intestate estates. The inventory normally has to be submitted within ninety days, or by the next term of the court. The purpose of this step is to protect the administrator or executor from having to handle excessive claims and to protect the rightful heirs against fraud. The appraisal also determines the probate fees charged by the court. This helps to keep the valuing of items at market value, with some tendency to be valued lower to minimize fees.

After the inventory is completed, the pending probate is published. Historically, these notices were pinned to the courthouse doors or other community building. In later times, the community posting had to be accompanied by a publication in a local newspaper for 3 consecutive weeks. This ensured that interested parties had an opportunity to be present to contest the will or to file a claim against the estate. These publication notices were preserved, as required by law. In some jurisdictions, the entire newspaper was kept, but in others the notices were clipped and filed for preservation. If you are looking for a missing issue of a newspaper, the probate records office could have a copy.

The dependents of the estate are normally assigned an allowance that will be received until the settlement of the estate is complete. The allowance could consist of cash, income-producing property (such as a herd of cattle), or money from the sale of certain property that the court approved. Usually the property used for dependent allowances cannot be used to pay debts. The dower right of the widow is also customarily set aside from the estate to guarantee support.

Guardianship is also determined and appointed if the estate involves minors or adults who are mentally incompetent. The guardian will act as a steward over the heir’s share of the estate. Guardians also have to post a bond to protect the share of the estate for which they are responsible.

Sometimes there is a court-approved sale of property to provide cash for the support of the widow and/or children. This sales of property can happen periodically throughout the settlement of the estate. A petition is filed by the administrator, executor, or guardian. The petition specifies what will be sold, why the cash is needed, and the expected amount of money that will be received. Once the court approves the sale, it is handled by public auction and is supervised and accounted for carefully, including the sale amount of each item and the buyer’s name.

In some jurisdictions, there is a required annual accounting of income and expenses due from the executor, administrator, or guardian. The accounting must also include the purpose of each transaction. Other jurisdictions only require this accounting upon the request of creditors or heirs of the estate. These records show heirs who die and women who marry before final settlement, so they are great source of clues for the genealogist.

A final publication is made about the estate before final settlement and distribution to give interested parties one last chance to voice their arguments or claims.
Prior to the final disbursements, a final accounting of receipts and payments from the estate is made by the executor/administrator.

The property is divided and disbursed once all parties are in agreement or when all heirs are at least twenty-one years old. After this, the case is closed and the duties of the executor or administrator end. Sometimes probate records of this final settlement will have detailed documents that list heirs, spouses, places lived, and second marriages of widows. These records could also be found in the Division of Real Estate in the office of the land recorder.

When and heir receives his or her inheritance, he or she releases the executor/administrator in writing. These receipts contain information such as the name of the heir, the amount and description of property received, the name of the executor/administrator, the names of guardians of minor children, and the name of the deceased. These releases are preserved with the original documents of the estate.

Probate records can give the family researcher a close look at an ancestor’s lifestyle and family. You can find out if males entrusted property to their wives (and how often), if sons and daughters were both given an inheritance, if the males were compensated equally, if children received property before their father’s death, and who was responsible for care of widows , children, or the disabled. Sometimes a will would free a slave or release a servant.

There are many questions about your ancestors that can be answered by looking through probate records.

How was the widow’s care provided? What kinds of deliveries did she receive? Was she given a residence and cash allowance? What happened if she married again?

You can also learn about your family demographics. You can see everyone who lived in the household, including servants or extended family. Find out the ratio of adults to children or men to women. How long did your ancestors live? Who lived longer – men or women? How large were the families and what was their financial status? Were most of your family members educated? What special heirlooms were part of the estate that would tell about your family – a bible, musical instrument, art work?

A will can provide detailed biographical information, such as a person’s title, occupation, religion, age, places lived, property locations, business associates, and other relationships.

A will can show how charitable your ancestors were or what political causes were important to them. You can see donations to various charitable causes, to public work projects, or to political parties. Perhaps your ancestor had a heart for a particular need in the community.

Because of spelling variations and regional dialects, you might even be able to determine how your ancestors would speak. How did your ancestor speak? This, as well as personality and character, is especially transparent in a handwritten will.

Items inventoried can provide insight into your family and their social status. Sometimes items are inventoried by room, revealing where each family member slept. The type of bed a man slept in was heavily scrutinized, so bedding items were usually listed in detail. For example, bed curtains would show that a canopy bed was owned. The inventory could also list bedding items such as featherbeds, coverlets and blankets separately.

Household items that might be on the probate inventory include table linens and the type of material, tableware and whether was pewter, silver, china, porcelain, etc. Cooking pots were sold by the weight, so the weight would often be included in the inventory. In poorer households, you might find less items that make up a larger portion of the estate. For some, a clock could be as much as a fourth of the property value. You might see words for items that you don’t recognize “piggins” and “eshons” are cheese vats and presses.

You can get a glimpse of what kind of household chores were done by looking at lists of utility items. You can see how most food was prepared, what kind of diet was consumed, or if most linens were pressed before using. Tools or farm items can reveal occupations or family businesses.

You can see if a family’s standard of living was raised from generation to generation by comparing their inventories. Improvements can be seen when wooden tableware is replaced by silver and china, enclosed bedsteads are replaced by heated rooms, and fireplace cooking is replaced by stove cooking.

If something known is not listed in an inventory, it could have been given away or sold to pay a debt. Sometimes it falls under the executor’s charge. Many inventories try to cover miscellaneous items with a “things unseen or forgotten,” category, giving it an estimated dollar value.

When two people in the same time period carry the same name, inventories can be used to differentiate them by matching their contents. If you are trying to prove relationship between a father and children, you can look for items that appear in the inventories from generation to generation.