Genealogical information in the probate process -- intestate inheritance

If a deceased person failed to write a will, the laws of the state govern property distribution. As mentioned in my previous column, this is termed intestate inheritance. While the will is probably the key document for testate inheritance, the key genealogical documents for intestate inheritance are documents generated by the steps of the process. The clerk files these original documents together in a probate bundle or probate file and may record the key steps in separate record books for each step. Some states such as Virginia returned the bundle to the heirs, or some counties destroyed or lost the bundles, making the record books more important.

If a person died without a will, a close friend or relative petitioned the appropriate court to open probate and appoint an administrator. The widow often fulfilled that role or relinquished it to another. The administrator posted a bond about equal to the value of the estate. The administrator published a notice to creditors and debtors in a local newspaper. The administrator then made an inventory of the property of the deceased (personal, real and notes owed), the court appointed appraisers for the property, and the widow selected her share of the estate from the property as required by law. A sale of remaining property raised money for the heirs or allowed them to purchase items. The court required reports and an annual settlement report of money until the estate settlement concluded. Then, the administrator filed a final settlement once all financial aspects concluded.

All of these steps generated documents, receipts or release -- including distribution to heirs. If there were complications such as lawsuits over debts, even more paperwork resulted. If the administrator died or failed to fulfill the responsibilities, they were replaced by an administrator de bonis non. These individuals also were court-appointed and posted a bond.

If the deceased had land and numerous heirs, researchers should look in court records for a petition to partition. This takes the form of a lawsuit in which part of the heirs sue the other heirs to partition the land. It is not necessarily a lawsuit filed out of animosity. The suit mentions all heirs, even minors and is a device to force sale of the land. The money generated by the sale was easier to partition than land. Heirs usually filed petitions to partition late in the probate process, so some heirs may have died and their heirs were part of the suit.

Sometimes there is no probate for a deceased person. They may have owned no property, or their property was in another county. You should search surrounding counties. If the law allowed and all heirs agreed, real property could have been sold and the money divided. Sometimes property transferred by silent transfer. Rarely, people intentionally avoided probate, which could be costly. Families sometimes delayed probate until a spouse died or when property transferred outside the family. You may have the wrong date -- check 10 or 20 years beyond the date you suspected. You might also try checking for a petition to partition or a will. If lawsuits were filed over debts owed to or by the estate, records of the suits are in local court books.

If you have access to a large genealogical library, check for abstract books of wills or probate records for the county where your ancestor lived. These usually have indexes and can lead to the original documents. Oftentimes you can save time by contacting a local historical or genealogical society or library (or visit their website) to determine details of local probate records and their access. If you determine no probate records are microfilmed or digitized, you may have to visit on site. Before you go, determine if the records exist or where local officials store the records.

A good research strategy for probate begins with finding the appropriate law of the state at the time of the passing of the deceased. Next determine which court handled probate (probate, circuit or county, for example) and search their records at the time of the person's death. Locate the probate index or docket, or lacking one, search probate minutes page by page. The individual volumes might contain an index. Find the folder, box or file number for the probate packet and where it is stored. If there are no bundles, reconstruct the probate with appropriate court minute books. If your ancestor lacked probate, search for probate of close relatives and associates.

Finally, if you access a probate bundle, it is good practice to transcribe all documents in the file. I have invariably found information that I missed earlier when I do this.