March 27, 2003
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.
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.
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.The Complete Idiot's Guide to Online Genealogy, now in its second edition. She is the author of four how-to guides on Family Tree Maker. In late 2001, she wrote The Genealogist's Computer Companion. She is a contributing editor to Biography Magazine with her "Celebrity Roots" column and a contributing writer to The History Channel Magazine. Her latest book is Finding Your Famous and Infamous Ancestors. She may be contacted at email@example.com.
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