The Mad Genealogist

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.

In a testate estate, the executor petitions for letters testamentary or authority to probate the will. In an intestate case, the surviving spouse or oldest son normally petitions for letters of administration or authority to administer the estate according to the laws of the jurisdiction. It is the responsibility of the executor or the administrator to look out for the best interest of the estate, the needs of the heirs, and the claims of the creditors.

2. Proving the will is a step that applies only to testate cases. The document is presented to the court. The witnesses to the will appear and attest that they saw the individual sign the will, that he or she was in sound mental condition and that he or she expressed his or her own free will. The court, after hearing this sworn testimony, will order that the will be recorded. Wills judged invalid are not proved and, hence, are not recorded in the will book but can often be found among the loose or miscellaneous papers of the courthouse or town hall. They will not appear in the index to probate records, and they are rarely microfilmed. You have to ask for these records to be searched at the courthouse.

Some jurisdictions require that all heirs of the estate be notified and present at the reading and recording of the will. Anyone who would argue against the admission of the will to probate may make claim then or generally forfeit any future right to contest the will.

3. The executor designated in the decedent’s will must be formally approved by the court. In intestate cases, the court appoints the administrator. Each state prescribes the order in which persons are entitled to be appointed, but, in general, this order is maintained: 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.

4. An administrator must post a bond equal to the worth of the assets of the estate to insure his or her faithful performance of duty and to protect the heirs in cases of misconduct. In most states, an executor is not required to file a large bond if the decedent’s will exempts him or her from that trust.

Bondsmen were usually relatives or family friends until recently, when bonding companies replaced personal sureties. If the wife is executrix, the bondsmen will usually be her relatives. If a brother or son is executor, they will be chosen from the family of the deceased. Bondsmen can also be heirs to the estate.

5. In most testate and all intestate estates, three disinterested people (often relatives who are not potential heirs) are appointed by the court to inventory and appraise all the property of the estate. They are usually ordered to submit the inventory at the next term of court or within ninety days. This inventory protected the executor or administrator from excessive claims against the estate and protected heirs against fraud or pilfering of their inheritance. The court also used it to set probate fees, as in modern practice. As a result, the values given to each item were close to current market value, although there seems to have been a tendency to keep them low. Thus, the fees levied against the estate were lower and the sale of items at auction was ensured.

6. As soon as the inventory is made, publication of the pending probate is published. In early times, notices were tacked on the doors of courthouses, town halls, churches, etc. Later, the court required public posting at the town hall and publication three successive weeks in the major county, town, or district newspaper before probate to give interested parties opportunity to be present to voice disagreement or to present claims against the estate. The law required preservation of those publication notices. Some jurisdictions keep copies of the newspapers in which notices appeared at the county courthouse or town hall, while others clip the notices and preserve them with the case packet. It is thus possible to find missing issues of newspapers at the probate authority.

7. Another step taken before probate begins is assigning an allowance for the dependents from a portion of the estate (usually the amount is determined annually) until the estate is settled and distributed. It may take the form of cash, income-producing property (such as a herd of cattle), or money from the court-authorized sale of certain property. Usually the property so designated is exempt from creditors’ claims. At this time, also, the widow’s dower right will often be set off to provide for her support.

8. In estates involving minors or incompetent individuals, a guardian is appointed to receive and assume stewardship over their respective shares. As with administrators and executors, guardians must post a bond equal to the worth of the orphan’s estate.

9. To raise funds for the support of the widow and children or to convert perishables to cash, it is frequently necessary to conduct periodic sales of property under the surveillance of the court. First, the administrator/executor or guardian petitions the court for authority to sell, stipulating the items, why the income is needed, and how much is expected to be realized. If the court authorizes the sale, a public auctioneer is appointed and a careful account is kept of what was sold, how much each item brought, and to whom the item went.

10. In some jurisdictions, executors/administrators or guardians must account annually to the court for income received and expenses paid out of the estate, and for what purposes. In others, executors may only be required to account upon request from heirs or creditors. Because these records show heirs who die and women who marry before final settlement, they are extremely valuable for the genealogist.

11. Prior to the final settlement and distribution of the estate among the heirs, additional publication notices are issued to give claimants one last chance to voice their desires.

12. The executor/administrator must make a final accounting of receipts and disbursements of the estate before the remaining property can be divided and the responsibility ended.

13. When all parties concerned come to an agreement or when all heirs are twenty-one years of age, the property is divided and distributed to those heirs entitled to receive it; the case is closed; and the executor/administrator is released. In many probate jurisdictions, lengthy division documents will be found listing all heirs and their addresses, husbands of female heirs, and second marriages of widows. In some states, these settlement documents are found in the office of the land recorder—Division of Real Estate.

14. As each heir receives his or her portion of the estate, he or she signs a receipt or release to the executor/administrator. These receipts give 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 filed among the original estate papers.

Probate records can provide an intimate glimpse into the lifestyle of an ancestor and specific facts about the family. From wills you can discover how often the men on your pedigree entrusted their assets to a wife, whether all sons inherited equally, how the daughters fared in comparison, whether a man distributed his property to his children before his death, and who was instructed to care for the widow and younger children or for incapacitated or handicapped family members. Servants were sometimes released by will and slaves freed.

What provision was made for the widow? Was firewood delivered to her door? Were living quarters and a cash allowance for needed purchases provided? Did the allowance end on remarriage? What was to happen to her portion of the estate if she remarried?

What are the demographics of your family? Who lived in the household? What was the ratio of adults to children, males to females? Did the men live to see their grandchildren? Did the women outlive the men? How many children reached adulthood before their parents died? What were the sizes of your family units? What standard of living did your family have? Did they read and write? Did a bequest include paintings, a family Bible, fine furniture, a carriage, or musical instruments?

Also revealed in a will is biographical information: title, occupation, religious affiliation, age, place of residence, place of property ownership, associates of the family, and relationship to prominent families in the area.

Did your ancestor bequeath assets to charities, such as schools, hospitals, and churches? Did he make a contribution for the upkeep of roads and bridges? Did she support a political party?

How did your ancestor speak? Indications of local dialect and pronunciation can be found in spelling variants, especially when a will is a holograph. It can also reveal personality, character, and level of formal education.

The probate inventory gives other insights into your family’s life and how your family compared to others in the community. If items are listed room by room and the rooms labeled, you know who slept where. A man was often judged by the kind of bed he slept in, so inventories usually listed bed and bedding in considerable detail: bed curtains imply a canopied bed to keep out cold drafts. Featherbeds, sheets, coverlets, blankets, and spreads may also be listed separately.

Table linens may be listed (damask, diaper, flaxen, canvas); cooking utensils and dishes (pewter, wood, china, porcelain, silverplate, brass); lighting (candles, lamps, wicks, lantern glass, and lighter fluids). In poor households, a clock might represent almost a quarter of the estate’s total value. Pots and pans may be valued by weight, since that is the way they were bought and sold. Unfamiliar items, such as kimblins, piggins, and eshons (cheese vats and presses), may appear.

The processes of cooking, brewing, baking, dairying, and washing are described in the kinds of utility tubs and bowls used. The presence of smoothing tables or boards and flat irons indicate that clothes were ironed before wearing, and bedding may also have been “smoothed.” Sanitary facilities inside the house could consist of chamber pots and close stools, often both. The larder hints at diet—butter, cheese, ham, bacon, hanging beef, salt pork, potatoes. Particular trades or occupations emerge from tools, mercantile inventory, record books, contents of barns, granaries, and crops in the field.

A comparison of inventories from one generation of the family to another will show improvements in living conditions—from fireplace cooking to stoves, from enclosed bedsteads to heated bedrooms, from wooden platters to china. Glass in windows, unless bequeathed as heirlooms to a family member, could be sold separately from a house, so panes may be listed in the inventory as well.

Sometimes an item will be missing from an inventory because the owner gave it away before his or her death, because it was sold to cover debts prior to death, or because it is specified in the will and falls in the executor’s charge. Some inventories will end with “things unseen or forgotten,” a category with an arbitrary dollar value assigned.

An inventory is also useful for distinguishing between persons of the same name by matching inventory contents, such as horses, cattle, and pigs, with tax rolls and agricultural census entries. You can also prove the relationship between a man and his children with property, real or personal, listed in inventories and wills from one generation to the next.

NEXT IN PART 7: American Probate Law