The Ins and Outs of Probate for Genealogists - Part Five - What are Probate Procedures?

Some of the most valuable documents to genealogists in discovering information about their ancestors consist of the documents filed in probate actions. However, understanding what has happened and sorting out the various interests of the people named in the action can be a real challenge. As I have said in previous posts on this subject, probate is complicated and can be the subject of huge books. Fortunately, genealogists do not need to understand probate in the way an attorney would need to know the subject, but on the other hand, many of the terms and particularly the procedures need to be understood so that the information obtained from the documents is correctly interpreted and recorded. This is the case in most of the areas of genealogical research, such as land and property in general, that interface with legal proceedings and requirements.

In the United States, the overall topic of the Law (with a capital L) is divided into two major divisions: the law and court procedures. Both topics are studied in law school, but the reality of the legal profession is that it takes sometimes years of experience before anyone becomes proficient in either the interaction between what happens in court, i.e. procedures, and what laws apply. These two divisions are understandably very difficult for law students to separate or even comprehend and can be utterly baffling to non-lawyer genealogists.

In the United States, the law was primarily inherited from English Common Law. It is further divided into statutes (what most people consider the law to be) and court decisions (subject to stare decisis) that interpret, apply and in some cases, modify the law as it is applied. Many people think lawyers spend their time learning what is referred to as the substantive law, that is, memorizing statutes. I learned rather quickly that trying to memorize anything having to do with the law was futile and could be dangerous. The Law tends to change frequently and lawyers are forced to refer to references frequently. For me, one of the annual events over the years was obtaining the most recent copy of The Arizona Rules of Civil Procedure. In my early days of law, this was a manageable paper-backed pamphlet. In the last few years it had been split into three huge books almost 5 or 6 inches thick.

The procedural part of the law is what creates the documents that are valuable to genealogists. So when we talk about "probate law" we are really talking mostly about probate procedure, that is the rules that govern how a probate case proceeds through the court. Probate law, as opposed to the procedures, comes into play when the Court makes a ruling concerning some-sort of controversy in the course of the legal action.

I have found that the overall procedures relating to probate actions have changed very little for hundreds of years. However, the problem is with the details. How the cases proceed through the court system and are managed by the judges, changes frequently. An example will help to illustrate what seems to be a contradiction. A probate action is usually commenced by an interested person (the petitioner) filing a petition with the court, asking the judge (the court) to open a testate action (with a will) in which case the original will is provided to the court, or petitioning the court to open an intestate action (where there is no will). This procedure has change very, very little from the time wills were first introduced. However, the format of the petition (not the wording), the time periods for filing such an action, the number of copies etc. changes from state to state and from time to time.

Side note, if you are already lost, you probably need to go back and read my previous four posts on this subject. By the way, when you go to law school, no one explains all this stuff to you, you have to pick it up on your own. As I explained earlier, most of the time early on in law school is spent glued to Black's Law Dictionary or its equivalent.

OK, so here is the Blacks Law Dictionary definition of probate:

The act or process of proving a will. The proof before an ordinary, surrogate, register, or other duly authorized person that a document produced before him for official recognition and registration, and alleged to be the last will and testament of a certain deceased person, is such in reality. The copy of the will, made out in parchment or due form, under the seal of the ordinary or court of probate, and usually delivered to the executor or administrator of the deceased, together with a certificate of the will’s having been proved, is also commonly called the “probate.” In the canon law, “probate” consisted of probatio, the proof of the will by the executor, and approbation, the approbation given by the ecclesiastical judge to the proof. 4 Reeve, Eng. Law, 77. And see In re Spiegelhalter Will, 1 Pennewill (Del.) 5, 39 Atl. 405; McCay v. Clayton, 119 Pa. 133, 12 Atl. SCO; Pettit v. Black, 13 Neb. 142, 12 N. W. 841; Reno v. McCully, 05 Iowa, 029, 22 N. W. 902; Appeal of Dawley, 10 R. I. 094, 19 Atl. 248.
Law Dictionary: What is PROBATE? definition of PROBATE (Black's Law Dictionary)

See how much help this is! (just kidding).

The entire probate procedure falls roughly into three steps or categories;

• Filing the probate petition either with or without a will
• The administration of the estate
• Closing the estate 

For a genealogist, historically significant documents can be found at each stage of the probate process. In a simple, straightforward estate matter, where there is no disagreement among the heirs, the probate may generate only a few documents in the court record of the action. If the estate (amount of money, property etc.) is very large and the heirs are fighting among themselves, the procedure could be monumentally large and there could be hundreds of documents. 

The documents filed at each stage of the probate action are, for the most part, formulaic, that is, they are very repetitious. Probate procedure, for the most part, is based on standard forms. It may appear that all you have to do is fill in the blanks, but that is very deceiving. There is a huge online business today, providing probate forms to non-lawyers so they can bring the actions themselves (pro per or propria persona). Although this may be possible, I have watched numbers of people trying to work their way through the court system on their own and I can say that the results are usually very frustrating and not entirely successful, except when the estate is very simple (few assets and no conflict). 

One last note on this post. Before the advent of typewriters (you do remember typewriters), all of the documents in a court's probate file were handwritten. This is an extra challenge to discovering the content of these valuable documents. You will find that, as a genealogist, you will have to be constantly upgrading your skill set as you begin you research into new types of documents. This is particularly true of probate documents. 

You may wish to read the previous posts in this series. 

The Ins and Outs of Probate for Genealogists - Part One In the Beginning
The Ins and Outs of Probate for Genealogists - Part Two - Where there is a will there is a way
The Ins and Outs of Probate for Genealogists - Part Three- Understanding the Language of a Will
The Ins and Outs of Probate for Genealogists - Part Four - What is Probate