Overheard on the Message Boards: Wills and Other Estate Records
by Rhonda R. McClure

Each week Rhonda answers a question from the GenForum message boards and gives her expert answer here. We'd love to hear anything you have to add. Go ahead and leave your comments on GenForum with the original message.

March 27, 2003
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Q: I am trying to locate the wills of some ancestors to prove lineage. If someone did not have a will would they have had some other type of legal document to settle their affairs? Years would include 1930, 1884, 1873, 1827. Thank you for any tips or advice. -- Pamela

Testate vs. Intestate Estates

There are two types of estates — testate and intestate. A testate estate is one in which the deceased has made out a will. An intestate estate is where the person dies without having made a will.

Testate estates have a last will and testament, usually written by the deceased. There are actually three different types of legally acknowledged wills. The first is an attested will which has been written by or for the deceased and has been signed by the deceased. There are also signatures of witnesses who attest to the court that the will was indeed written at the instance of the deceased who was of sound mind and that it was done of his or her own free will. The second is a holographic will which is written by the deceased who then signs and dates it, but there are no witnesses. Such a will must be found with the deceased's important papers and cannot have any other writing on it. The third is a nuncupative will which is an oral will dictated by the deceased as they are on their deathbed to witnesses who must then write it down as soon as possible and present it to the court within a certain time after the individual has died. Of the three wills this third one is sometimes considered invalid.

Intestate estates are those in which the individual died before he or she has an opportunity to record a last will and testament devising real estate and bequeathing personal property. In such cases, there are usually laws in place to determine the distribution of an estate. Most states allow the widow, in the case of a deceased married man, a one-third share of the estate for her lifetime (known also as her dower rights). Since legal heirs are notified through the newspaper and other means, you may learn about relationships through records contained within an intestate estate.

The Probate Process

When we look for a will, we sometimes forget that it is actually just one of the aspects of the probate process. The probate process is the set of legal procedures that must be followed in distributing of the deceased's property.

1. The widow, or principal heir, petitions the court to begin the probate process. These may be a simple notation in the probate minutes or it may be a detailed document listing the names of all heirs. This is the time to gather the letters testamentary (when there is a will) or the letters of administration (when there is no will) that identify the individual who has the authority to probate the estate.
2. In cases where there is a will, the next step is the prove the will. This involves witnesses appearing before the court and swearing that the will is original and that the deceased was of sound mind when it was written.
3. In testate cases with a will, approval of the executor or the appointing of the administrator by the court is the next step. There are rules as to who is to be appointed as administrator so you should not be surprised to find the surviving spouse or child being appointed.
4. Posting of the bond is the next step. This is usually a higher amount in the case of an administrator than an executor.
5. Inventory of the estate is usually done by three individuals who have nothing to gain from the estate. While they may be relatives, they do not stand to inherit anything from the estate. This usually has to be done within 90 days.
6. Publication of the pending probate follows the completion of the inventory. Such announcements in earlier times may have been put up on a public bulletin board and published in newspapers.
7. If the deceased has dependents, they will be assigned an allowance before the probate begins which will continue until the estate is settled. It can take many forms but is usually exempt from the claims of creditors.
8. In cases where minors or incompetents are involved, guardians are appointed to them. Like administrators the guardians must post a bond.
9. Property is sold in order to support the deceased's immediate family members (generally this includes the spouse and children). Such a sale has to be approved by the court before it can take place.
10. In some states, annual accounting of the estate is required. This means that you are likely to find some record of the current status of the estate by the administrator, executor and/or guardian in probate books until the probate has been finished.
11. Before a settlement is finalized, a last notification must appear in newspapers to give any claimants one final chance before the executor or administrator can make a settlement final.
12. When property is finally divided, it means that either everyone concerned has come to agreement or the heirs have reached the age of majority. Often you'll find documents detailing the division. These may include husbands' names for the female heirs.
13. Receipts are signed by anyone getting a portion of the estate. These receipts are the proof that the claimant or heir has received what he or she was supposed to.

All of these steps generate paper and clues for your research. Most of that paper is found in the probate packet or estate files if the county or probate court in question has kept such files. You may also find this information in books where it was recorded by a clerk.

Why Does It Matter?

If you have limited your search to finding a will and have stumbled on the will book for the county then you have just one piece of the whole picture. The will may mention the married names of any daughters who were married at the time the will was written but the records found in the probate packet or the estate file will also show which of the children married later and identify interested parties who died before the estate reached final settlement.

For an example of what you can find in an estate packet, consider Mary Rutledge late of Perry County, Alabama, who died before 9 February 1870. Her estate file contained 106 pages and included among other things her will (which was not found in the will books for Perry County) and receipts signed by those who were given bequests. The estate file also included letters from attorneys who represented many of the heirs and information on their names, where they were living at the time and whom they had married. One of Mary's children had died and I learned the name of the person she married and that she had two children who were now entitled to her share of the estate.

Probate records, even if they are incomplete may still hold clues. In the 33 page estate file for Nathan Herendeen late of Moultrie County, Illinois, I found the proof I needed to connect Nathan to a researched Herendeen line. A fellow researcher had what turned out to be a second wife for Nathan, named Permelia. I had a first wife Eunice, from whom a daughter Martha married a Jacob Sickafus. The administrators of Nathan's estate were identified as Permelia Herendeen and Jacob Sickafus and among the heirs listed was none other than Martha Sickafus. This connection allowed me to take this particular line from the mid 1800s back to the 1600s.

In Conclusion

Probate records are found on the county level for most states and many have been microfilmed by the Family History Library. Because there is such a chance of finding good information in the probate records, you should always pursue them. Even if you find a will, don't stop there. Look to see what other records may exist and research them. It may require contacting the county courthouse directly but it is usually worth any effort.

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