Terms Used in Testate Procedures

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Merriam-Webster defines probate as “the action or process of proving before a competent judicial officer or tribunal that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine.” Probate records are offered as proof or verification of information set forth in a will or other document of estate settlement.
It helps to understand the vocabulary involved in probate records. There are two types of probate cases. Testate cases involve an actual will, while intestate cases either do not have a will or the will presented was not accepted by the court. The testator is the person who makes the will, and devisees are those who receive any part of the estate. We often hear the words “last will and testament” used as if these terms are interchangeable. Technically, when real estate is divided, the document is a will. If it is personal property that is distributed, the document is a testament.

There are numerous other legal terms that are relevant to probate records:

Executor – The executor is a person who is named in the will and is responsible for making sure the deceased’s instructions are carried out as intended.

Administrator – An administrator is a person who is appointed by the court to replace the executor. This happens if the executor is no longer living, or if he or she simply refuses to perform the duties of the executor. The will is then appended with a record of appointment, and the administrator distributes the estate according to the appropriate state laws.

Caveat – When a legal notice is filed to stop a court proceeding until the person giving notification can have a hearing, this is called a caveat. In probate cases, this is usually used to contest a will.

Codicil – I codicil is a modification to a will, explained in a supplement to the original document. Common reasons for a codicil include the birth, death, or marriage of a child. However, some codicils change the distribution to the existing heirs. It is usually dated differently than the will, and therefore requires its own witnesses.

Nuncupative – A nuncupative will is an unwritten will based on the declaration of the deceased. This is only valid in special cases when accepted by the court. When the court deems it valid, it is processed in the same way as a traditional will.

Will – A legal declaration of how an estate is to be settled or distributed after the testator’s death. A will is usually a written document that is signed by witnesses.

Witness – A witness is a person who is present to bear testament to something, such as a statement or a signature. In the case of a will, the witness is used to prove its validity as well as the competent state of mind of the testator. Laws vary by state, but usually two witnesses are required.

ADDITIONAL TERMS USED IN INTESTATE PROCEDURES

Intestate cases are processed in much of the same manner as testate cases . If a will was not written for the deceased, which is more often the case with our ancestors, intestate procedures began. It is a common misconception that there are no probate records for a family that was not wealthy. In very few cases this may be true. However, if a person died with several debts, there can be significant paperwork, and therefore a great amount of genealogical information to review.

Some of this information can be found in the evaluation of intestate probate items. This can include places lived, names of relatives, children, siblings friends, widows, business associates, and people to whom money was owed. Sometimes the items themselves can provide clues or can link families together, such as the case when a person was counted as property (as a slave). Family heirlooms can also link family members. Information about a person’s profession or rank can also be indicated; this is especially helpful when trying to distinguish between people who have the same name.

Following are the terms used during intestate case proceedings.

Administrator – In an intestate case, an administrator is appointed by the court to settle the estate as an executor would. The administrator might also have to post bond and submit letters of administration. The collection of records involved is an “administration” and some of these have been published. Many include abstracts to be published in an index.

Inventory – Traditionally, the real estate, personal assets, and obligations of the deceased’s estate had to be recorded in an inventory. These documents can be a great resource for the genealogist. There is no regular format or length for an estate inventory. Some are simple and some are quite long and detailed. Most have a published abstract. However, the data that is published usually doesn’t include the whole accounting of the estate. Some do, along with a note about debts that the deceased owed to others.

These records can open up new paths for the genealogist, beyond the state of the family’s finances. For example, a listing of work tools can indicate the occupation of the deceased. The date of an incurred debt to a midwife can reveal the birth date of a child. You might also find that there is property owned in other areas.

Accounts, Petitions, Renunciations – The administrator(s) or executor(s) returned accounts to the court at specific intervals. These list incurred expenses during the interval period from the administration and settlement of the estate. This could include paid debts, collections of credit, and services rendered. If an heir had passed away, or if a woman who was an heir had married, this might also be included in the accounting. The last accounting will have receipts and notes on the final disbursement of property with the list of heirs, including the amount each received and the place where they lived.

Dower Rights – Dower rights concern the interests of a widow. The surviving spouse has a right to the deceased’s property, usually a third of it, for lifetime support of herself and any children. These rights can vary some, depending on the location and time period. Records of the court proceedings will show the widow’s given name as well as the spouse’s. Similar records that might exist are prenuptial agreements and marriage settlements. Information about family relationships can be uncovered here. Sometimes the allotments were published along with other court records, and some can be found in periodical probate publications.

Laws governing inheritance changed often. One of the earliest laws existed in 1682 for a group of English colonists. Their laws followed the traditions of London: one-third belonged to the widow, the children shared another third equally, and one-third was designated by the will. The children would also share the wife’s third if she had already passed on. It only took one year for the law to be altered, adding a double portion to the inheritance of the oldest son. Knowing the inheritance laws can help you determine relationships between people, even if there is no formal documentation.