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Friday, November 28, 2014

The Ins and Outs of Probate for Genealogists - Part One In the Beginning

Probate is a set of court or government procedures established for the orderly transfer of property from a deceased person to his or her heirs and/or assigns. Records kept in the course of a probate action are valuable sources for information for genealogists about the deceased and the deceased's family. As an editorial comment, unfortunately in recent years, probate has become overlaid with so-called "estate planning" which, for all but the very rich, is an excuse for selling either an insurance product or associated services. Since the most ancient times, the motivation for some kind of court or government involvement has been the issue of taxes or other restrictions imposed on the transfer of property occurring at the time of death.

At each stage of the probate process, there are records made of the proceedings that have become extremely valuable to genealogical researchers. However, there is a basic limitation to probate: no property, no probate. In addition, probate deals with the concept of individual ownership or rights to property both real and personal so the concept of probate evolves as property laws evolve. In more modern times, this involvement of property laws with probate, tax laws with probate and court procedures with probate all create a huge challenge for genealogists. There is no need for a genealogist to become a legal practitioner, but the jargon and the concepts involved in probate, property law and court procedures are important adjuncts to understanding these areas of research.

I remember that one of the major challenges of becoming an attorney was the obstacle of not knowing or understanding the terminology. The simple solution is to use the Internet or a good legal dictionary to look up every word you do not fully understand. If you are like me, you will also have to look up most of the words in the definitions for a while until they become familiar.

Therefore the initial challenge for the researcher is learning the probate, property law and court jargon. The first and most important term is the idea of an "estate." In order to have an "estate" the law, at the time, must recognize individual property rights and the ability to alienate or transfer those rights to a spouse or other family members collectively called the deceased person's heirs. For a much more extensive discussion of this topic see Wikipedia: Legal history of wills. The estate is considered to be the residual property previously owned by the deceased person. Therefore, the  "estate" is an abstract concept that evolved to account for the rights in property that were preserved after death. As a result of the differences in property law from country to country, the laws governing the transfer of property upon death reflect those differences and each country has its own brand of law. These types of differences have continued to recent times and, for example, each state in the United States has probate laws that differ from every other state; what would seem to be minor differences in probate laws can have a considerable effect on the disposition of property.

As individual property rights were recognized from ancient times, the idea of a "will" developed contemporaneously. The will was a document created by a person before death that attempted to influence the distribution of that person's property after death. Of course, there had to be some congruence between the desires of the person contemplating death and what the law would allow at the time the person died and again, since ancient times, governments of all kinds have imposed formal restrictions on the making of a will. Most commonly, the restrictions require that a will be created with some level of formality and in many instances had to be either written and witnessed or, if made orally, had to be written down at the time or shortly thereafter. This is a boon to genealogists because many of those documents were and are preserved.

When I say that a will is a an attempt to dispose of property, I mean that the heirs may or may not observe or comply with the provisions of the will. In addition, the government may declare all or portions of the will unenforceable for a variety of reasons. It is the interplay between the desires of the deceased and the government and heirs that turns probate into the huge resource for research. In many cases, genealogists profit from the arguments and fights between the heirs' interests and the governments' interests.

Because of probate's very nature, it has proved to be highly conservative. The forms and language of probate has persisted over the centuries. Modern attempts to reform probate language have usually only resulted in other terms being substituted for the more archaic terms. At the same time, as property laws change, there has also been a concomitant change in probate terminology.

Here are a few websites to get you started with the concepts of probate and wills:

This is an ongoing series in which I will discuss many of the aspects of probate law. Stay tuned. 

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