Wills and Probates: A Bonanza of Information for Genealogists 12-17-2017


Welcome to Wills and Probates: A Bonanza of
Information for Genealogists. My name is Stephanie Asberry, and I’m the
supervisor of the Genealogy Division at the Indiana State Library. During this webinar, I’m going to be talking
about the exciting topic of wills and probates, and how they can help you with your genealogy
research. What is a will record? As most of us know, a will is a legal document
in which a person specifies the disposition of his or her property after death. After a person’s death, that person is referred
to as the decedent or deceased. In this webinar, when speaking of a decedent
that left a will, I will occasionally refer to that person as the testator. Unless someone died intestate, which means
without a will, they would have had either an attested will, holographic will, or a nuncupative
will. Attested wills are the most common, and they
are usually done in advance by the testator or, as mentioned, the one who wrote the will. They involve witnesses, who will attest later
that the decedent made the will freely and was of sound mind. Holographic wills are written in the deceased’s
handwriting and are not witnessed. They are usually found among the deceased’s
important papers. If there is any other handwriting from anyone
else on it, it is considered invalid. A holographic will is not valid in all states. A Nuncupative will is often times referred
to as a death bed will. It is orally presented and is not recorded
and not written or signed while the decedent was alive. Witnesses later make depositions to its provisions
and, if approved by the court, they are carried out. A nuncupative will is also not valid in all
states. This example concerns a nuncupative will,
and shows evidence from family or friends about what a soldier had stated verbally concerning
his wishes or had written in his will, which could not be found. Typically, evidence concerning nuncupative
wills consists of correspondence and official forms. So, what about probate records? The main function of a probate record is the
settlement or division of property after a person’s death. Not all probates involve a will. Some people die without a will and the state
divides the property. The use of the term probate can also refer
to all matters of the probate court or the probate process. In some states and some situations, the term
probate refers to estate records which can be the same thing. The term probate comes from Latin which means
to prove. Part of this involves court processes and
witnesses to authentic it. Probate records can establish relationships. In the most basic situation, heirs are named
in the will. For some individuals, even though a name is
listed, there may not be a relationship stated. According to Donald Wilson in an article in
the Smith County Historical and Genealogical Society Newsletter, sometimes a probate may
help determine the birth order and ages of children, and can prove the remarriage of
the widow and the name of the new husband. Sometimes actual names of children and daughters’
husbands are not mentioned in the will. There may be guardian’s accounts that show
what happened to minor children and may prove birth dates, marriages, and names of other
kin. In terms of property, land owned is usually
mentioned in the probate process. There may be several tracts or pieces of land
being talked about. Sometimes, it may appear that the deceased
owned property that may be miles away; however, that may not be true. It may be that the deceased held a note for
a mortgage. The personal inventory of the deceased can
give a clue as to the occupation. The type of furniture, the presence or absence
of books, farm equipment, and livestock, can tell a lot about the social status and the
lifestyle that, perhaps, your ancestor enjoyed. The two basic terms here that refer to the
probate process are testate (where your ancestor died with a will), and intestate (where there
was no will). The probate process differs in either case. The probate process is regulated by state
law. In Indiana it would be included the Indiana
Code, which is available at the Indiana State Library. The principles of law that apply to probates
developed from English Common Law. It is based on a history of judges’ decisions
rather than relying on lawmakers. Common law developed a fairness in the courts
with regard to individual rights and the protection of private property. The probate process which will be described
briefly was a court process. To begin the probate process, a petition was
filed with the court. The petition to the court involves witnesses
appearing and attesting that they witnessed the testator signing the will on a specific
date. The date is very important, because it is
necessary to have the most recent will. Sometimes, sworn affidavits are presented
to the court in lieu of a public appearance. When researching, keep in mind that not only
can you find relatives named within the will itself; but, relatives can also serve as witnesses
and bondsmen. It is also possible for bondsmen to be heirs. When the petition is accepted by the court,
then letters testamentary are issued to the executor or executrix giving them legal control
to dispose of the estate. In the case of someone who died without a
will, then letters of administration are issued. What about an executor or executrix? This is the person that was appointed by the
testator to execute the provisions of a will. When there is no will, an administrator is
appointed by the court. An administrator is also appointed if the
executor resigned. An executor must be approved by the court,
and might be refused for various reasons, such as being of unsound mind, a married woman
in her early years, or having been convicted of a crime. An administrator is usually from the family. If the family does not want that responsibility,
then a creditor or public administrator may be appointed. It is the job of appraisers, which are usually
appointed by the court, to determine the value of the estate from papers that the executor
has compiled. The executor will publish public notices for
an estate sale. These notices can also instruct anyone that
owes money to the estate, or has claims against it, to present them to the executor/executrix
within a specified period of time. The time frame can vary based on the size
of the estate. It is important to remember that where to
find these papers can vary, depending on the jurisdiction and time period during which
you are researching. Michael Neill in his introduction to probate
suggests that most of the early records were bound volumes of orders and not the papers
themselves. Sometimes, there are separate books with copies
of the will, estate inventories, bonds, and other records. At other times, these are loose papers that
appear in probate packets. Once the estate is inventoried by the appraiser,
it is presented to the court. In a will that is simple, assets can be distributed
to the heirs. The assets of an estate sometimes need to
be liquidated to pay debts. This process involves an estate sale. Records of an estate sale will list assets
sold and the amount obtained. After debts are paid, any remaining money
would then be distributed to the heirs. Distribution of the estate can be based on
the common law rights of dower and curtesy. A simple definition of a dower is the wife’s
interest in her husband’s estate; and, a husband’s interest in this wife’s estate
is called curtesy. Generally, a wife’s dower is the portion
of her husband’s real property allowed to her for life. In most cases, it was one-third. Sometimes, a wife accepted other property
left to her in her husband’s will. A dower usually applied to each parcel of
land in which the husband had an inheritable interest at any time in the marriage. Different states had different laws with regard
to a woman’s right to hold property. It is important to research the land and property
laws in the state and time period that you are searching. By doing so, you will have clues as to what
kind of documents to search. A wife’s dower interest in her husband’s
land while they are both still living was called inchoate dower. When her husband died, it became dower consummate
and entitled her to one third of the share and profits from all the land no matter who
owned it. A public official such as a sheriff or judge
could lay out boundaries for the third share of the estate. The wife’s portions then became known as
vested or assigned dower. If you do not find the signature of the wife
on the deed, does it mean she died before her husband or just stayed home with the children
when the will was made? In each case, it is necessary to determine
by time and place if the wife was left out or had really died before her husband. In most American colonies and later states,
a wife who had not joined in the deed could sue the purchaser after her husband’s death
to recover her dower interest. Until the enactment of married woman emancipation
acts in the middle to late nineteenth century, a married woman was subject to coverture or
feme covert. A woman not legally married or separated from
her husband was not under “the disability of coverture,” and was called a feme sole. She was described as such in wills and deeds. Coverture meant that a husband could act for
the wife in any legal proceeding, including selling her own land. He also controlled any personal property such
as clothes or jewelry. Generally, he could not sell more than his
lifetime interest in her land, because his rights did not extend any further; however,
this was not true in all states. In England there was the use of separate estates,
which allowed a wife, with her husband’s consent, to manage as her own any property
specifically set aside for her separate support. Primogeniture meant that the eldest son inherited
all of the estate. This was primarily in colonial times. If the eldest son was not listed in the will
at all, it was not necessary, as the law stated that all property automatically came to him. Sometimes the oldest son received a double
share of the otherwise equally divided estate. A daughter’s share of the estate was often
left to her husband. Generally, this happened because a woman was
not allowed to own real property, or because it was felt that she could not manage the
affairs of the bequest. “Sometimes, because a father may have settled
a dowry on his daughter when she married, the father’s bequest maybe a smaller one
than one than to other, unmarried sisters. It is also possible that a will may leave
an unmarried daughter a larger amount than her sisters, in order to make them equal in
their overall share of the father’s estate.” Watch in a will how the names of children
are listed. Sometimes, a comma will be left out so that,
for instance, Elizabeth Mary may appear as one person but in fact are Elizabeth and Mary. You may want to use marriage or other records
to prove the existence of two people. Sometimes the testator made arrangements for
a son to be an apprentice or indentured servant. You may want to investigate court records
which formalized the arrangement. This would be a guardian situation as the
person became responsible by law for the individual. Sometimes the court will order the child be
found after the child has been given an equal portion of the estate. The absence of a child’s name may indicate
that the child is deceased or may have moved elsewhere. The executor or executrix files notice with
the court that all accounts due have been collected and all debts have been paid, and
that the court is ready to settle and divide the estate. A final settlement document is prepared by
the executor or executrix based on the terms of the will and the final assets of the estate. Real and personal property is distributed. A fee is paid to the executor or executrix;
and, trustees are appointed by the court if there is a trust or trust fund. Some other things you may want to consider
are was the will an original or recorded copy? There are several clues to help with that:
Does it bear the testator’s signature or mark? Does the text flow smoothly from the bottom
of the page to the top of the next? Does the handwriting match throughout? If infants or minors are mentioned, it is
possible that the estate was not settled until the last child reached adulthood. It is suggested that court records be checked
for at least two decades following a person’s death. Infants are historically referred to a person
who was a minor. “Tender age” meant a person under 14. Was education willed to the children? Outside the northeast, mid to older teens
were not likely to be schooled unless the family was wealthy or elite. Sometimes property is conveyed in advance. Does a grandchild receive a special share? This happened if the son was deceased or the
daughter was unmarried. Are relationships stated to certain people? Sons and daughters in law could be step children. Cousins may be in any relationship past the
first degree. A nephew may be a grandchild. Are slaves manumitted? According to Elizabeth Shown Mills, “Significance
can depend upon age and color of those freed, religious affiliation of testator, or whether
testator has a living wife or descendants.” As you know, there are times when there is
no probate. What happens then? Sometimes, an ancestor did not have enough
of an estate to probate. The amount that the estate had to be under
varied from state to state. Sometimes, there was not even enough money
to bury a relative. Sometimes, your ancestor avoided probate by
selling all real property before his death. The will would actually have only minor personal
items. A tracing of property may be done using deed
records even though relationships may not always be stated. Sometimes a probate was delayed due to the
wife’s share of the property never being surveyed or not partitioned off. The wife and children could become aggregate
owners of a husband’s property at his death. In this case, you would need to check records
other than probate or estate to see if there were any other court records pertaining to
the estate. This is especially true if there were minor
children that needed a guardian or trustee to look out after their interests. In terms of guardianship, a male relative
in the early years was appointed to look after the interests of minor children. Mothers in this time period were not trusted
to have the responsibilities of guardianship. It could be that family folklore is just plain
wrong. Sometimes, even though a family member may
tell you otherwise, it is possible that an ancestor did not have enough to probate. To help confirm this, you would want to look
at other records that could show that the ancestor never had enough of an estate to
warrant a probate. Post death land records transferred property
without the need of a probate, which could have been to a family member or someone outside
the family. Post death land records would not appear under
the decedent’s name. So, a search for names of children, including
married daughters, may be necessary to find the land. You would want to become familiar with laws
that deal with probate procedures in the various states you’re researching, since those laws
varied from state to state. You can check for the last survivor. In other words, if you cannot find an estate
for the husband who may have died first, check for the estate of the wife when she dies. A woman is more likely to have a probate file
if she survives her husband. You should be sure to check in the area or
the county where the bulk of the property was located. A check for records in two counties may be
necessary if your ancestor lived near a county line. Make sure you look for records in the time
period where your ancestor actually died and perhaps up to 20 years later. If you can not find a probate record on a
particular ancestor, look for a relative. So, just how do you access wills and probates
at the Indiana State Library and other locations? There are wills and probates in early years
that can be found in bound volumes in the courthouses. It is possible they are intermingled with
other records. There can also be loose papers that are a
part of the probate packet, as mentioned earlier. Remember to check beyond the date that the
estate was closed. The Indiana State Library Genealogy Collection
has indexes and abstracts of wills and probates for Indiana, as well as some other states,
in the book collection in the Genealogy reading room. There are also copies of wills and probates
for many Indiana counties available in the microfilm collection on the second floor. As a FamilySearch affiliate library, we also
have access to county records, such as wills as probates that we may not have on microfilm. For specific information on holdings you may
wish to check our online catalog under the name of the county. You can also check under Collections & Services
from the State Library’s homepage and then Collections by County. This provides a link to all of the 92 counties
in Indiana, where you can find a listing of the many of the holdings for that county,
including microfilm. You can also check the FamilySearch website
at familysearch.org for wills and probate records for a specific county. On that website, check the Catalog under the
Search feature. You can do a place search with the name of
the state and of the county. As mentioned earlier, since the Indiana State
Library is an affiliate library, many of the records that have been digitized are available
to view here. In Indiana, early courts were established
before statehood. As you can see, various courts had jurisdiction
over probates during different time periods. Wills were to be recorded in separate ledgers
during a certain time period, which was 1807–1816. After statehood, the Circuit Court had probate
jurisdiction. This would have been from about 1817–1830,
but separate ledgers were rarely kept, especially prior to 1825, and most courts mixed probate
proceedings with other court actions. While many courts began keeping separate probate
ledgers in 1825, the primary ledger was called a “Record of Last Wills and Testamentary.” Many wills were recorded in this ledger and,
upon rebinding, were called “Will Records.” Not all wills, however, were recorded in this
ledger. In 1829 a separate Probate Court was legislated
and, with it, separate Probate Order Books. This court was replaced in 1853 with the Court
of Common Pleas. It was abolished in 1873 and its jurisdiction
was then transferred to the Circuit Court. Many Order Books continued sequential numbering. For most counties, the court with probate
jurisdiction has been the Circuit Court. Certain exceptions exist. Superior Courts in Lake, La Porte and Porter
counties, for example, have had probate jurisdiction since 1899, and separate Probate Courts were
created in Marion, Vanderburgh, and St. Joseph counties. Now I’m just going to run through some examples
of wills and probates This is an example from our microfilm from
Book D of the Probate Order Book for Franklin County, Indiana. It is an order that sets up James L. Miller
with Letters of Administration for the estate of Andrew J. Miller. The Genealogy Collection has many types of
records pertaining to probates. These are included in probate order books
like the example shown, or in complete probate records, circuit court records, and the various
courts that were already described for Indiana. Sometimes there is probate information as
part of a partition record. This is the dividing of property that may
be found in both probate and land records. This transcript is an example from Brown County
for the estate of Robert Bush. It is a petition to sell real estate dated
September 18, 1869. It is an intestate case where the property
is to be sold to pay for debts on the estate. The wife, Anna, died in Missouri before Robert. This probate also makes arrangements for the
care of minor children and many other family members. This next transcript is another example from
Brown County for George Percifield concerning an estate worth $500 or less dated 1897. The widow is Rachel Percifield and the names
of the appraisers are also noted. There is a petition to sell real estate. There were also letters of guardianship described,
as well as mention of a partition suit which is defined as a lawsuit brought on by dissenting
heirs to force the division of real estate so that each could have personal possession
of his inheritance. No details of the partition suit were provided. It is possible that a complete probate record
may provide further details. This is an example from a book entitled Abstracts
of Wills, Madison County, Indiana Will Record I, June 1879-November 1892 in the Circuit
Court. This book of abstracts was compiled by the
Daughters of the American Revolution. It shows an example of the transcription of
information concerning the will of an Elizabeth Herritage, and provides information on her
sons, daughters, and family. Here is an example from the multi-volume set
of books on the first wills of Marion County Indiana compiled by the Caroline Scott Harrison
Chapter of the DAR. This will is noteworthy in that it gives detailed
instructions from a John Black to his wife with regard to his property, which seemed
to be somewhat extensive. He mentions that he is a resident of Hendricks
County, but most of the property was in Marion County. Boone County is also mentioned. This is a sample of a page from the book specifically
on Guardianships from Washington County, Indiana. This shows that our collection on books for
wills and probates is not restricted to Indiana, but includes many other states. This is a sample taken from Westmoreland County,
Virginia. It includes estates in Colonial Virginia from
1691-1699. The sample shown here indicate estate worth
in terms of pounds of tobacco, which at the time was legal tender in that area. Now I’m going to touch on websites on wills
and probates In Colonial Maryland, the probate process
was controlled by the Prerogative Court, which was an outgrowth from England and English
Common law. In 1692, the Deputy Commissary was appointed
for each county. He was responsible for recording the will
or account in his own books and to also send documents to the Prerogative Court, where
they would be recorded again. Testamentary proceedings would also be set
up. After 1776, the Prerogative Court was abolished. Later, a chief clerk and register of wills
was set up in each county to do most of the work of the court. The URL for information on Maryland probates
is shown here. In Connecticut, prior to the creation of Connecticut
probate courts in 1698, wills were proved and recorded in other colonial jurisdictions. In early years, it was provided that wills
and probates were to be administered in the town where the deceased resided. These were plantation records or town records. Early will records for Virginia were part
of Circuit Court Records. Clayton Torrence indexed early wills from
Virginia in his book published in 1931 which covers the years 1632-1800. This has been incorporated in an Index to
Wills and Administrations Database located on the Library of Virginia’s website and
administered by the Library of Virginia. The database, in addition to including entries
by Torrence, also includes documents not located in county records, but rather from counties
in Virginia where official records do not exist. Each database record includes the name of
the deceased, the county or city, the type of document, the date the document was recorded
and references to the source where the document can be found. For most records, the Library of Virginia
microfilm reel number is also included. This is the search page for the Wills and
Administrations database on the Library of Virginia website. Also maintained by the Library of Virginia
is a Legislative Petitions database. This database provides a calendar of Legislative
Petitions submitted to the General Assembly between 1776 and 1865. The database lists the name of the petitioner,
locality, date of presentation, description, reel number, box number, and folder number. In addition, each petition has been assigned
one or more topics for indexing purposes. There are four ways to search the database:
By Petitioner, By Locality, By Description, or By Topic. The petitions are on microfilm in the West
Reading Room and available through interlibrary loan at the Library of Virginia. Frequently, the petitions contain supplementary
support documents useful in research, including maps, wills, naturalizations, deeds, resolutions,
affidavits, judgments, and other items. There are also various wills and probates
collections on Ancestry. Just so you can see what some of those pages
may look like, I’m going to run through a few of them. They will differ, depending on the collection. Cyndi’s List of Genealogical Sites on the
Internet also has links to some helpful resources on wills and probates The Missouri State Archives has a database
for Missouri’s Judicial Records Researchers often overlook the immense value
of circuit court files. These files can be challenging to researchers,
but they offer a clear snapshot of daily life in a time period. In an era when reputation was the basis for
social standing, the only recourse available to those who had been wronged was litigation. The opportunities for research into social
history, commerce, freedom, race, gender, architecture and other topics are tremendous. Missouri’s circuit courts heard cases dealing
with everything from fur trade to the Civil War, steamboats to McCormick Reapers, and
agriculture to urbanization. For many years, the Missouri State Archives
has worked with local court officials to help preserve, index and microfilm their records. Now, through the Missouri Digital Heritage
Initiative, digitized collections of court files are available to researchers online. Records are available by county, court and
year; and are searchable by name and keyword. The internet does provide specific surname
results for will records. An example is shown here for the surname Meade
in England. The screen shows the name and how it appears
in the various locations in England. This is an example of Robert Meade of Great
Easton in 1560, which was located from the Essex search. This shows a glossary of unusual words found
in wills from England in the 16th and 17th centuries. It can be located in Google through a search
for the terms Glossary of unusual words in wills, etc. There is also a website for All Known Wills
of the Mayflower Passengers. Each of the names can be searched and the
images displayed. The example that is shown here as a part of
this website is for a William Mullins, and is the only surviving will for an individual
who died the first winter at Plymouth. So, as we wrap this up, let’s consider the
question of why are wills and probates so important? According to Thomas Jones, noted professional
genealogist and co-editor of the National Genealogical Society Quarterly, wills and
probates show direct evidence in that they specify direct relationships among several
people. Indirect evidence information that is important
or relevant to a genealogical question needs to be combined with other information before
an answer can be developed. With negative evidence, the absence of a person
from a record can be used to rule out a relationship or other genealogical fact. Negative evidence in an estate record is difficult
because many times offspring of the deceased are not named. The fleshing out of wills and probates can
provide interesting details on your ancestor’s life, such as the type and kind of items owned
by your ancestors. I hope you learned a few interesting facts
today, and best of luck in finding your ancestors’ wills and probates!

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