Wills & Estates
People died either having a Will [testate] or without a Will [intestate] and their Estate was probated in the county in which they died [Estate administration] and other counties where they owned real property [Ancillary Administration]. Estate Administration was most often conducted in the county Probate Court or the Court that had jurisdiction at that time over the administration of Estates.
If they had a Will, then it was usually included in the Probate Court Minutes within a short time after the decedent's death. Letters of Administration were issued by the Court appointing an Executor to oversee the administration and distribution of the Estate's assets. This Executor [male] or Executrix [female] was either designated within the Will or if an intestate administration, the Court would appoint them. Executors must also have been residents of the same state where Probate was to take place. They served in a fiduciary capacity meaning that they were responsible for periodic reporting of all activities to the Court and had to prepare accountings of what monies were collected and distributed.
Land was passed on to the heirs cited in the Will or by the laws of Descent and Distribution if there was no Will. Wives were entitled to either accept their bequest cited in the Will or to renounce it and take their Dower's share equal to a child's portion of the assets. If there was no Will, wives were still entitled to their dower rights. If they choose to enforce their dower rights to their husband's estate, then all property they received would become their own property outright and it would not be subject to any terms or conditions as to ownership as often bequests in Wills would have. This same right was also extended to men using the term 'curtsey' instead of dower.
It was a common practice in Wills for wives to receive as their bequest the rights to the homestead and other property so long as they lived, with same property after her death going to the children. This was called a 'life estate' which was a terminable interest in real property not fee simple ownership of real property. The heirs to the life estate property after the wife's death, were called 'remaindermen' and their interest in the property was also a terminable interest meaning they would not receive outright fee simple title until after the wife's death. So for as long as the wife stayed a live, they were tied to one another in the decisions concerning that property. This practice would keep the homestead from falling into dubious hands if the wife re-married, keep the value of the property, and would require notice to both the life tenant and remaindermen about any action taken regarding the property such as mortgages. It gave some assurance that the children would eventually own their father's land without lost of value. Step mothers were the ones that often renounced their life estate and chose the dower-share option so that the property would then go to their children and family, bypassing the decedent's children; or, it was just greater value. Researchers should look for other court proceedings objecting to the dower share; and if found, then this is a red flag to the possibility that the wife was not the only wife of the deceased.
Minor children of the Decedent were often bound to another adult male by the Court as their temporary guardian even with their mother still alive. They served as the guardians of the minor's property received from the Estate. The mother usually continued to be the natural guardian of the child's person. Today, guardians of minor children are usually only appointed when both parents are deceased or that their parents have been legally declared unfit. Researchers will need to know what constituted 'minority' at the time of the Estate. The age may vary from state to state and vary over time.
Genealogy researchers should also understand that when real property passed on to the heirs of an Estate, there was not usually recorded in the deed records anything to show this transfer. Researchers will need to look in both types of courthouse records to follow the chain of title to the land.
The Laws of Decent and Distribution also varied from state to state. Genealogy researchers need a general understanding of these laws to know how Estate assets were distributed in an intestate administration. Also today who gets what and in what order is not necessarily the same as it was as these laws have changed over time. Some states may say that the children are first in line, while other states say that the spouse is first in line. If there are no children and no spouse still alive, these laws address who is next in line.
Multiple Lineal Descendants received their inherited property either per stirpes or per capita. Per Stirpes "...denotes the method of dividing an intestate estate where a class or group of distributees take the share which their deceased would have been entitled to, taking thus by their right of representing such ancestor, and not as so many individuals." Per capita "...denotes that method of dividing and intestate estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree to the decedent, without reference to their stocks or the right of representation." [Source: Black's Law Dictionary, Revised 4th Ed., West Publishing Co. 1968]
Homestead was the husband's and wife's primary residence, the land underneath the house and often all land contiguous to it. Homestead Exemption has to do with today's real property tax calculations. These are two entirely different concepts concerning real property.
There are two important dates concerning Wills and Estates. The date the Will was written and the date of the beginning of the Probate Administration. Court records may reflect the actual date of death of the deceased; but if not, researchers will know at least an approximation of the death date. They died either between the Will date and the Probate date or within 30 days of the Probate date.
Wills
are one of genealogists' favorite documents as they usually show family
names for the wife, children, grandchildren and even in-laws. Wills
are undisputed evidence as to relationships to the deceased. For
people dying before the 1850 census, Wills and Bibles are often the only
available sources for learning children's names. It is always best
to locate an entire transcription of a Will because abstracts do tend to
leave out important information. See: Abstracts vs. Originals. African American researchers use Wills to
learn slave names and abstracts will usually omit them. Will
abstracts do tell many important things, such as a Will exists and where to
locate a copy of the original Will in its entirety.
The above information was provided by our web site's owner, Carol Ann Tindell, former nationally recognized Certified Legal Assistant [CLA] in Estates, Trusts, Wills and Guardianships, Real Estate, Contracts, and Litigation. It is solely general information to help fellow genealogists. For further information, consult an attorney.
Design, Graphics, Photos & Content © Copyright 2004 Carol Ann "C.A.T." Tindell, Blue Ridge, GA