Probate Records: Their Purpose And Value To Genealogists

Probate Records: Their Purpose And Value To Genealogists

Probate records are important to genealogists because of the evidence they provide about family relationships. They are also valuable because most Americans have made out wills in some form. The courts have always been the final jurisdiction for settlement of the estates of those who failed to have wills. Other court records pertaining to a wide variety of civil and criminal actions also contain information that can be useful to genealogists. This is the first in a series of columns which will explain the significance of these records in genealogical research.

The term "probate" once only referred to the process of proving the authenticity of the decedent's last will and testament. Today, we use the term to refer generally to the entire process of settling the estate of a decedent. The court which handles probated affairs can vary from state to state. It may be known by any of the following names: Probate Court; Superior Court; District Court; Orphans Court; Surrogates Court; Register of Wills; or Estate Court. In most states, each county will have its own individual court handling the process. There are some that have "probate districts" that cover a regional area.

To find probate records, you will first need to determine the county or other jurisdiction in which your ancestor lived at the time of his/her death. Some possible sources for this information would include the following: bible or family records; an obituary from a newspaper; death record from a county health department; a mortality schedule; pension record; or a census record. If you know the state in which an ancestor died, but not the county, you could also try an index or calendar of wills for the given state.

The person making out a will is known as a TESTATOR. When a person dies leaving a valid will, they are said to have died TESTATE. Those choosing not to make a will are said to have died INTESTATE. The provisions of a will are usually carried out by a person named in the will itself. This person is known as an EXECUTOR. Some wills name multiple people as "ALTERNATE" EXECUTORS in case the main person can not or will not perform this function. Any INTESTATE estate by law must go through an administration process. This process is settled by a court appointed ADMINISTRATOR. Some states use the term PERSONAL ADMINISTRATOR to refer to the person responsible for settling an estate, regardless of whether it is testate or intestate.

Historically, a WILL has referred to the provision for deposition of REAL PROPERTY. The term TESTAMENT has referred to the provision for deposition of PERSONAL PROPERTY. In modern legal jargon, they refer to any legally executed instrument that provides for the disposition of a person's property, both real and personal, after his/her death. To be valid, a will must comply with specific legal formalities. This usually means the following: 1. The will must be in writing and signed by the testator in the presence of competent witnesses. 2. When a person is unable to write his/her name, a mark, often in the form of a cross, can serve as a substitute for the signature.

Wills can also be in several formats: 1. HOLOGRAPHIC WILL. This type of will is written, dated, and signed entirely in the handwriting or printing of the testator. There are usually no witnesses and the verification process involves proving that the handwriting is that of the
decedent.

2. NUNCUPATIVE WILL. This is an oral will declared before witnesses during the testator's last illness and later reduced to writing. For many American soldiers killed before 1900, this was the type of will utilized. For that reason you sometimes hear the term BATTLEFIELD WILL connected with this type of will.

3. CODICIL. This is a supplement to an existing will. You will find additions, alterations, qualifications, or subtractions from various provisions of the original will. A codicil becomes part of the will and SUPERSEDES the will in any respect in which it differs from the original.

The term REAL PROPERTY refers to unmovable property. From a legal perspective, this would be classified as land and buildings. PERSONAL PROPERTY would refer to movable property, as in your personal possessions such as furniture, clothing, children, and slaves. A person who receives REAL PROPERTY by will is a DEVISEE. A person who receives PERSONAL PROPERTY by will is a LEGATEE. Those who receive property from an INTESTATE ESTATE are known as HEIRS-AT-LAW or DISTRIBUTEES.

For information on probate records or any other aspect of genealogical research, feel free to contact Bryan L. Mulcahy at the Ft. Myers-Lee County Library. My direct telephone number is 479-4651.