Some people eat, sleep and chew gum, I do genealogy and write...

Sunday, December 28, 2014

The Ins and Outs of Probate for Genealogists - Part Seven Continued -- Sub-part Two

In my last post in this series, I started to examine the probate file of Caleb W. Haws filed in Utah County, Utah. This particular file had 62 pages of documents. As I noted in the previous post, Caleb died in 1871 in England but his probate was ultimately not concluded until 1904. This illustrates an important fact about probate cases, they may be filed a relatively long time after death (in this case seven years) and not be concluded until many, many years after the death of the person. In addition, the probate action may take place a long way from where the person died.

To see the first part of this post see

The Ins and Outs of Probate for Genealogists - Part Seven - An Example of a Simple Probate File

At this point you may not be thinking that this file is so simple, but I can assure you that although it took a long time to finalize, this is a really simple probate file. Here is the next document in the file:

This is the coversheet for the Order Appointing the Administrator of the Estate filed July 22, 1878. Each formal document in a probate file may have a cover sheet. It is important to examine these cover sheets because they may contain key information about the file. Most court files carry a file number which helps to find and keep track of the file. The file number in this case is P183 at the bottom left of the page.

It is interesting to review the dates when certain documents were filed with the Court. Some of the steps in the probate process have time limits set by the local rules of probate procedure. It is the nature of the court system and lawyers, that most wait until the last minute to do something. If the case was a regular civil litigation claim or even a criminal matter, the court imposed deadlines would be much more stringent. But in a probate court, few of the actions have deadlines and if they do, they are generally very liberal about filings. In some cases, if the deadlines are ignored, you may see orders from the court (judge) requiring one or more of the parties to file a document. In my experience, probate matters are almost never dismissed by the court unless it appears the matter is completely resolved. But in civil and criminal matters, dismissal is more common for a variety of reasons.

The next step in the probate process involves the filing of an administrators bond. Here are the screenshots:

In this case, the deceased died intestate, that is without a will. Bear in mind that a probate action is not tied directly to a will. One of the main reasons for a probate action is to make sure the just debts and taxes of the deceased are paid before the property is distributed to the heirs. In most jurisdictions, any interested party can file a probate action for a deceased. For example, if a creditor is owed money and is concerned that the heirs will dissipate (distribute) the estate before the bill is paid, then the creditor can go to the court and force the estate to be probated and the bills paid. In addition, any one of the heirs, either with or without a will, could file a probate action in an attempt either to enforce the provisions of the will or to try to get the will disqualified and the property distributed in some other way.

If there is a will, the deceased testator can provide that his or her administrator act without the need for a bond. In some cases the court will also allow the administrator to act without a bond. But in the absence of a will (intestate) the court will commonly require an administrator to post a bond. This bond is essentially a guarantee that the bills will be paid and that the administrator will not steal money from the estate. It is not uncommon that the administrator will take money from the estate and again, it is not uncommon for the payments made to the administrator to become an issue. I have seen cases where the administrator took all the money and property in the estate and the heirs have had to sue on the administrators bond.

As in this case, you might think that the heirs, in this case the children, would want the mother to get all or the largest part of the estate, but in real life this seldom happens. It is amazing to see how greedy the heirs can become in a probate case. This is especially true if there are some alternative relationships in the family such as children from more than one marriage. Commonly, the child or children who have cared for the deceased parent decide that they are entitled to a greater portion of the estate than those children who, for whatever reason, did not participate in the care of the deceased. In some cases, the caregiver is not a member of the family and takes advantage of the position as caregiver to take money or property from the deceased. In this case, the heirs may file a separate lawsuit against the caregiver as part of the probate.

In this case and also commonly, the Administrators Bond is set at an amount that seems fair to the court (judge) and also protects the creditors and heirs. Here the bond is set at $1,500, an enormous sum at the time. Using an online inflation calculator, this is equivalent to over $35,000 today. I can only speculate, but I would assume the bond was set so high for the wife due to the length of time that had past since the death of her husband with no probate having been filed. She would have had ample time to spend the assets of the estate.

The surety for the bond was made by the three children of the deceased. This means that they agreed to pay the bond amount if there was a claim made against the bond. It is also not uncommon for the bond to be purchased from a third-party surety company such as a bonding company that, in effect, loans the bond amount (not actually paid unless there is a claim) for the payment of a premium.

As genealogists, you should be able to see the value of these transactions for establishing the family relationships and some of the details of the family life of the deceased. I realize I am working my way through this probate case rather slowly, but not nearly as slowly as these cases take to get through the court system.  In the next installment, I will continue with the contents of this probate file.

Stay tuned for the continued parts of this particular post in the series on probate.

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

No comments:

Post a Comment