Probate court,
probate will - does it all sound like gobligook?
This guide does
not pretend to do more than scrape the surface of this subject, but
will hopefully get you started without the need of a law degree.
Wills, although not the first records that come
to mind when researching family history, are a significant resource in
your research armament and should not be overlooked. Although many
people did not leave a will you may be one of the lucky ones to find
that your ancestors did.
The information wills contain is varied and quite specific, therefore
they are invaluable.
What Is It?
A will is a
document written for the purpose of ensuring the distribution of assets
like real estate, inventory, capital, or other items to specified
persons.
A Brief History
Before 1858 in
England there was no single system or place in which wills were proved.
Instead there was a hierarchical ecclesiastical court system. The
country at this time was divided into two provinces, York and
Canterbury - and each was presided over by an archbishop. These
provinces were split into a number of dioceses (each with at least two
bishops), which were in turn, divided into several archdeaconries,
which were then split into rural deaneries. On 12 January 1858 these
courts ceased, and jurisdiction for the granting of probate was passed
to the new secular Court of Probate.
What is Probate?
When a person
dies, many countries have laws that provide for public supervision over
the estate that is left, whether or not there is a will and hence the
need for a Probate Court. The term "probate records" broadly covers all
the records produced by these laws, although, strictly speaking,
"probate" applies only when there is a will.
Probate is a
minor judicial procedure to prove that a will is valid. Traditionally,
it required the witnesses to a will to appear before the probate court
and swear that they saw the deceased sign it, and that he or she was
mentally competent and under no duress at the time. More recently, the
witnesses have been allowed to sign affidavits (sworn written
statements) to those facts at the time the will is signed, and the
probate court requires only that the affidavits be filed with the will.
Other Terminology
The maker of a
will is formally called a testator,
but decedent or deceased are also used to refer to the
original owner of an estate, whether or not there was a will.
If someone dies,
leaving a will that names the person who is to administer it - pay the
bills, collect debts owed, and distribute the proceeds - that person is
called an executor (masculine) or executrix (feminine).
A person who
dies without a valid will is called intestate,
and the property of an intestate estate goes to surviving relatives
according to formulas set by the law of each jurisdiction. When someone
dies intestate, or for some reason a named executor or executrix cannot
serve, the probate officer appoints a personal representative,
traditionally called an administrator
or adminstratrix, to represent the
estate.
Partition is the process of dividing
land among people who owned it as a group - jointly or in common - and
it too is subject to judicial approval, but sometimes by a court other
than the probate court.
Research Guide
What is the source of the will, and in what county
and state was it probated? If the will or papers are in a drawer, box,
or file, copy any identifying numbers.
Include the full name and residence of the testator
(the deceased), as well as other personal information such as age,
occupation, physical health, place of burial, and the names of present
or former spouses.
Include the names of each person listed, and the
order in which they are listed.
Does the will state if those listed are related
to the testator, or to each other?
Where do the people live?
How old are they?
List everyone, whether they received anything or not.
Don't assume that children are listed in birth order, or that all the
children are included, or that the spouse of the testator is the mother
of the children listed.
Note if someone was specifically excluded. Was there
a family feud, or did that person receive his share at an earlier date?
The will may not list a child who has already died.
List the essentials of any bequests or devises,
whether they be land, money, property, slaves, etc. Also list any
trustees, guardians of minor children, beneficiaries, and any special
provisions, restrictions, or privileges.
List the names of the executor and relationship to
the testator, if it is given. Was it a son or brother of the deceased?
Note the date on which the will was signed, and the date the will was
probated or proved. Witnesses should be listed as they appear.
Note also the signature of the testator. Did he or
she sign or make a mark? Was the signature legible, or did the testator
appear to be in poor health? The signature, as it appears in the will
book, has been copied from the original. If you can read the original
will, it may determine the testator's social status or whether he or
she was educated.
Points To Remember
A caution you should always keep in mind is that some
probate court records, like those copied into bound will-record books,
are transcriptions from the originals. Published compilations or
abstracts are available but these are two times further removed from
the original, once when they were copied or abstracted, and a second
time when they were set in type. Each recopying introduces a chance of
error.
Be careful not to draw unwarranted conclusions from
usages with which you are unfamiliar, like "son-in-law" meaning a
stepson, or "my sister" meaning a member of the same religious group.
The omission of a known child could mean that the person had died
before the will was made, or that the child had already received its
portion, like a daughter who had a dowry at marriage.
Despite the perils of relying on published abstracts,
they have one great advantage; an every-name index to all the people
mentioned. The probate court indexes seldom list anyone but the
decedents, or sometimes minor children for whom formal guardianships
were established. It is this lack of complete indexing that probably
deters many family historians from making greater use of probate
records. Without any every-name index, you must first have the names of
ancestors before you can use their probate records.
Each type of probate court record offers different
insights about the relatives, economic status, and lifestyle of the
deceased. The will is especially useful for the relationships it
states, and for clues to unstated relationships from the identities of
the witnesses, executors, and heirs.
Probate court records are often the key to opening
previous dead ends in family history research. The closer you can come
to viewing the original documents, the less likely that you'll be
misled by other people's errors.
Well, I don't
know about you but after all that 'legalese'I need a break!
You may be surprised to learn that even a subject like the probate
court can provide cause for mirth:
Anthony Scott, in his last will and testament wrote:
'To my first wife Sue, whom I always promised to mention in my will.
Hello Sue!'
The last will and testament of Edith S of Walsall
included £50,000 to each of her children, Roger, Helen and
Patricia. Their inheritance was not to be spent on 'slow horses and
fast women and only a very small amount on booze'.
Sara Clarke of Bournmouth directed in her will: To my
daughter, I leave £1 - for the kindness and love she has never
shown me.
"I give to Stonyhurst Jesuits the sum of £500
for the purchase of thermal underwear" - Rosaleen S's last will and
testament, West Yorkshire."
In Henry Budd's last will and testament he left
£200,000 in 1862 in trust for his two sons on the condition that
neither grow a moustache. In another Will, Matthias Flemming shared his
dislike. He left his employees £10 each in 1869; those with
moustaches only got £5 however.
One man left his employer one shilling to buy a book
on manners.
Norman Earnest Digweed's will entered the hall of
famous wills when he directed that his estate of £26,000 be
placed in trust for 80 years for Jesus Christ should he return within
that time. Quite a number of people came forward to claim the estate
which nevertheless passed to the crown after the 80 years was up in
1977.
One cat-loving lady left her whole house to be used
to provide for her cat. The lady's funeral was to be held on a clear
summers day, and her cat was sunning itself lazily on the drive outside
when sadly it was run over by the hearse.
Miss Amy T of Doncaster left £500 to the
Doncaster Branch of the RSPCA, requesting it be used to provide dinners
at Christmas for dogs in their care.
