Probate

Testate or Intestate? 

Which Did Your Ancestor Choose?

By Karen Coombs

Testate—when a person leaves a last will and testament.  The person decides who will receive his possessions.

Intestate—when a person dies without making a will.  The state divides the possessions according to law.

Three Kinds of Wills:

Attested Will—written and witnessed by another party.

Holographic Will—written but not witnessed.  These usually are found in personal papers.

Oral Will—Deathbed wills.

Wills are found in Probate Books in the county.  They are sometimes called surrogate papers.  Most probate volumes will be indexed by the originator of the will.

You will find Abstracts.  These are shortened versions of the will.  The Abstract will include name, date, property description, names of wife and children, anyone else mentioned, and witnesses.

Parts of a Will:

Name of the originator, date and residency.

Statement of health and religious belief.

Where to bury the remains.

Distribution of property to wife and children.

Distribution of property to other family members and friends.

Distribution of property to the church for the care of the poor.

Appointment of Executor.

Signature of witnesses.

Intestate information can be found in court records from the time of the death was reported until the estate was settled which could be many years or in Estate Paper Files which are sometimes called Loose Paper Files.

Court Process:

Each of the following steps may produce a document which will help in your research.

One of the heirs (normally the oldest) will petition the court for authority to begin the probate process.  In some states, the petition will list all heirs, their residence, and ages.

If there is a will, the document is presented and witnesses attest to the validity of the document.  An order is issued to notify all heirs.

In Intestate cases an administrator is appointed.  This can be anyone: a wife, a child, a neighbor, or a friend.  The administrator posts a bond equal to the worth of the estate which ensures his honesty in the performance of his duties.

An inventory is made of the estate and a value is placed on all items. This normally takes about 90 days.

A notice published to announce the pending probate. Creditors can then file for unpaid debt amounts.

A portion of the estate is set aside for the support of the widow and dependent children.

A guardian is appointed for minor children. The guardian must post a bond equal to the value of the orphan’s estate.

If needed, property or items are sold to pay the creditors.

The remaining property is distributed to the heirs. A receipt is issued when each heir receives his portion of the estate.

The administrator must make a full accounting to the court as to what debts were paid and how the remaining property was divided.

The probate process is closed when all minor children turn 21 and/or an agreement with all heirs has been acquired. This process could take years.

The Estate Paper Files or Loose Paper Files will contain some of these papers.

Problems you may encounter:

· Handwriting

· Difficulty in locating documents—these documents could be spread throughout many years of court records.

· Legal language

· Worn paper

In England, the probate process can happen in several different courts depending on where the originator owned property or how large the estate was.

Be sure to check all courts.

Where to find Probate Records:

In the Family History Library Catalog:

· Select place

· Type in county

· Select county with the appropriate state from list

· Select probate records

· Select type of records and appropriate time period