The Mad Genealogist

Despite their usefulness, probate records are filled with traps for the unwary genealogist. The first pitfall is contemporary law. Probate is a function of state authority, with only one federal prohibition: primogeniture, or passing a landed estate automatically to the eldest son, is forbidden; by 1811, all former colonies had revoked it by statute. Because probate is a state function, probate procedures vary from state to state and have changed over time.

What happens when someone dies and there estate goes into probate? What is the Process?

Since the procedures followed in both testate and intestate cases are almost identical, both can be considered together. Most states require that probate begin the first term of court following the death of a property owner, between thirty and ninety days after death.

1. Usually, the principal heir petitions the court for authority to begin the probate process. Until recent years these petitions were made verbally and recorded only in the probate minute books. However, some jurisdictions require written petitions bearing the names of all heirs, their residences, and their ages; these are filed with the original estate papers. Such petitions are especially valuable because they may be the only documents that list all the heirs.

What is a Guardianship?

A guardian is a responsible individual of legal age appointed or acknowledged by the court to manage the property ownership of those incompetent by reason of youth or mental or physical handicap to handle their own affairs. A guardian may also be called a conservator, a curator, a tutor, or a receiver.

What is the Difference between Testate and Intestate Estates, well here it is…..

Testate Estates

When a person makes a last will and testament, he or she leaves a testate estate. Originally, a will devised (gave) real estate (or land) and property attached to it—buildings, mills, timber, water rights, etc. A testament bequeathed personalty (personal property) made up of movables (lump sums of money, books, jewelry, furniture, clothing, horses, cattle, pigs, sheep, grain, tools, slaves, services of indentured servants) and receivables (book debts, mortgages, bills of exchange, and loans). American laws generally leave a person free to distribute his or her estate at will as long as it does not leave the heirs dependent for their upkeep on the state.

There is much diversity in the publication and content of published probate records. Some probate records appear in book form, some in periodicals, and others in collected works. Even within a single publication the content and focus varies considerably. Printed probate records may concentrate on a period, a location, or a specific kind of probate record. Some printed works deal only with wills; others include administrations, and still others incorporate guardianship’s, dower rights, inventories, and related records. Some cover ecclesiastical areas, such as parishes, rather than governmental jurisdictions, such as counties. Some deal with the colonial period only, while others bridge long time spans.

The word probate refers to 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,” but the commonly accepted form of the word includes “the right or jurisdiction of hearing and determining questions or issues arising in matters concerning the probate of wills or the administration of decedents’ estates,” according to Webster’s Third New International Dictionary.

Probate records include a variety of documents created to support court proceedings in the settlement of an individuals’ estates. The number and type of probate records created may vary over time in different jurisdictions and due to the amount of real and personal property involved. The various documents generated in the probate process are rarely filed together.