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Friday, December 12, 2014

The Ins and Outs of Probate for Genealogists - Part Two - Where there is a will there is a way

It would be a monumental task to undertake explaining probate laws throughout the various countries of the world, so of a necessity, I will focus on the laws of the United States and its predecessor colonies on the North American continent. Probate law is highly complex and a common textbook for law school students contains many hundreds of pages of just basic information. However, the subject of probate is simply a small part of the entire subject which is sometimes referred to as "Trusts and Estates." For example, a current popular text is as follows: Dukeminier, Jesse, and Robert H. Sitkoff. Wills, Trusts, and Estates. 2013. This book costs over $200 and has 1032 pages. A law student would be required to go through this entire book in one semester, along with all of his or her other courses and books.

It is also important to understand that the laws governing wills, trusts, estates and probate are sometimes significantly different from state to state and especially from country to country. After going to law school, an attorney specializing in this particular area of the law, could spend years learning about the procedures and details of handling a probate case.

This brings up another interesting subject. Genealogists are told that certain types of documents, such as wills, are "valuable sources of information about individuals and families." In addition, the large genealogical database companies often have extensive collections of wills and probate files. To a novice researcher, such files can be impenetrable. Fortunately, a genealogical researcher does not have to achieve the same level of competence as a practicing probate attorney, but the learning curve can be almost a steep. Here is an overview of the subject, lumped under the heading of Probate Records in the FamilySearch Research Wiki:
Probate records are court records created after an individual's death that relate to a court's decisions regarding the distribution of the estate to the heirs or creditors and the care of dependents. This process took place whether there was a will (testate) or not (intestate). Various types of records are created throughout the probate process. These may include wills, bonds, petitions, accounts, inventories, administrations, orders, decrees, and distributions. These documents are extremely valuable to genealogists and should not be neglected. In many instances, they are the only known source of relevant information such as the decedent’s date of death, names of his or her spouse, children, parents, siblings, in-laws, neighbors, associates, relatives, and their places of residence. You may also learn about the adoption or guardianship of minor children and dependents. Additional clues often found in probate records are an ancestor's previous residence, occupation, land ownership, household items, former spouse(s), religion, and military service.

Probate records are essential for research because they often pre-date the birth and death records kept by civil authorities.
Despite the admonition contained in this quote, my experience is that probate records and all the associated records, are among the least used records by nearly all researchers. During the past ten years at the Mesa FamilySearch Library and now at the Brigham Young University Family History Library, I cannot ever recall anyone asking me a question about wills, probate or trusts or any other related subject. I am perfectly aware that from time to time, classes are taught at conferences on this subject. But the upcoming #RootsTech 2015 Conference does not have even one class touching on the subject of wills. The concurrently held Federation of Genealogical Societies Conference 2015 also fails to include even one class on the subject of probate or wills. Even the 2014 BYU four day Conference on Family History and Genealogy failed to have even one class on any subject related to wills or probate.

Enough of the tirade, into the subject.

In order for an estate to exist, in the legal sense, there must be a system that recognizes property rights, both real and personal, that survive death. Some commentators are of the opinion that personally held property rights date back into antiquity. See for example, Kent, James, Charles M. Barnes, and Oliver Wendell Holmes. Commentaries on American Law. Boston: Little, Brown, 1884, vol. 2, at page 318. However, by the time the earliest settlers arrived from Europe on the American continent, the law of property, both real and personal, was extremely complicated and it remains so to this day.

The development of the right to alienate property lies at the core of the legal concept of private ownership. We take it for granted that we can both buy and sell or otherwise dispose of our "property." We maintain that belief even in the face of the ability of the government to take away those rights at any time subject only to the enforcement of specific legislative mandates. It is this relationship between the interests of the state as opposed to the interests of individuals that governs the entire area of the law of trusts and estates.

The concept of a "will" or a document purporting to dispose of a person's property upon death arises from the need to provide for surviving family members while at the same time exercising the deceased person's desires concerning the disposition of his or her property beyond the grave. The motivations for this desire are complex and usually go way beyond a simple desire to provide for a wife or children, rather wills have become a method whereby the deceased extends control of the family matters well beyond his or her lifetime. The laws governing estates in the United States have evolved to the point that the laws themselves essentially create a "will" for everyone who dies, irregardless of whether or not they create their own will. If a person dies without a will, usually referred to as "dying intestate," then the laws of intestate succession provide for the disposition of any property owned by the deceased. Many of these laws are designed to reflect the most common ways of transferring property after death. The person who makes a will is commonly called the testator or in the case of a female, the testatrix, but most recently, the term "testator" can be used in both cases.

Much of the complexity of the law of trusts and estates and the probate procedures themselves are based on the reality that disputes among family members concerning the estate. The most common issues arising after the death of the testator are whether or not there was a will in existence, what terms or conditions were included in the will and whether or not the will was validly executed. Wills are a formal, legally binding document and in almost all jurisdictions, must be created and executed (signed) in a particular way in order to be valid and enforceable. Wills fall into the following main categories:

  • Oral Wills - a will made shortly before death that is communicated to witnesses. The enforcement of such a will depends on the testimony of the witnesses and whether or not such wills are recognized in the state where made.
  • Nuncupative Wills - An oral will that must have two witnesses and can deal with only the disposition of personal property.
  • Deathbed Wills - A common term used to describe both oral and nuncupative wills.
  • Holographic Wills - A will entirely in the handwriting of the testator and enforceable depending on the particular laws of the place where the will is made. A holographic will may still require the signatures of witnesses. 
  • Pour-over Wills - Wills made by spouses to dispose of their commonly owned property, usually made in conjunction with a trust that governs the disposition of the property. The will is designed to confer any property owned by the deceased person into a trust. 
  • Simple Wills - This term is usually applied to wills that follow the statutory scheme for wills in the state of origin. This type of will seldom has provisions that will affect the deceased's property any differently than would be the case had the deceased died without a will.
  • Reciprocal Wills - Wills with mirrored provisions between spouses, usually leaving everything owned to the surviving spouse.
  • Joint Wills - Where both the wills of the spouses are contained in one document. A joint will is usually treated as if it were two separate wills.
  • Mutual Wills - An attempt by married or committed couples to assure that their property passes to one or more heirs, usually the children of the relationship. After one of the parties dies, the surviving party is bound by the provisions of the will. 
From a genealogical standpoint, the main interest a researcher has in a will is that expressed by the Research Wiki extract cited above. As this series continues, I will next write about the language of wills. 

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