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Tuesday, January 6, 2015

The Ins and Outs of Probate for Genealogists - Part Nine - What happens when the probate gets complicated?

A complicated probate is a genealogist's delight. What are the factors that comprise a "complicated" probate. I am sure there are a number of things that contribute, but in my experience there are really two main factors:
  • A lot of property, both real and personal in various locations
  • A major dispute among the heirs
Now if you were an heir in either of these situations, you probably would not think of the probate as being a delight. Depending on how much property is involved and/or how long the heirs want to keep fighting, the legal fees, alone, in a complicated probate can be staggering. But all this makes for a jolly good research opportunity for the persistent genealogist. 

As my previous posts in this series show, probate actions can be filed long after the death date and can continue for years and years. There may be time limits for the filing of a probate in a particular jurisdiction. There may also be time limits on the length of time a probate case may remain in court before the judge orders the parties to the probate to provide an accounting. In some jurisdictions, the parties must file an annual accounting. It is important to investigate the particular rules of the probate court where you ancestors' property may have been probated.

The concept of jurisdiction is fundamental to court proceedings. Any particular court may have jurisdiction or the ability to hear court cases, limited by the type of case, the amount in controversy, the location of real property and/or the residence of the litigants. The proper place or court in which to file a particular type of lawsuit is referred to as the "venue." Every level of court jurisdiction operates according to the rules establishing venue. The idea is that a party to a lawsuit should not have to appear someplace that was very difficult for the parties to visit. As a result, each level of the court system is organized geographically usually referred to as districts. So when we say that a court has the jurisdiction to hear a certain type of case, it means that type of case can properly be filed in that venue, i.e. that particular court. When we talk about venue, we are determining which of the different divisions of the court or district in the state, county or city is the proper place to file the action.

Jurisdictions pile up on each other like pancakes. Most court systems have different levels of courts. Each level of the court system has a defined type or types of cases over which it has jurisdiction. As I mentioned, the courts divide up all of the cases by type, amount in controversy, physical location of the property and parties in question. So in any state (or country) a probate action will only be allowed to be filed in a particular type of court and in a particular geographic subdivision of that court. In legal terms, the action or case must be filed in the proper jurisdiction and venue. Genealogical research into any type of court case must take into account the type of court handling a particular type of case or jurisdiction and the physical place where the case must have been filed or venue.

For example, in Arizona there are local courts in towns and municipalities generally called city courts. In a larger city, such as Phoenix, they may also be called municipal courts. These municipal courts have limited jurisdiction over local matters involving only certain types of controversies. If you wanted to file an action in the municipal court, you would have to investigate whether or not that particular court had jurisdiction to hear your case. You will find that the jurisdiction of municipal courts is very limited. You might also have to determine which of the various divisions of the municipal court would accept a case filed depending on where you lived in the city.

Again in Arizona, there are different levels of courts with greater jurisdiction. The next court with slightly larger jurisdiction are called justice courts. The judge is called a justice of the peace. These courts are divided up by county. Counties with a large population may have many different justice courts. Counties with only a few people may have only one justice court. Depending on where you live or where the defendant lives, you will have to choose the right venue or particular court having jurisdiction in the geographic area where the defendant was located. Remember cases are filed for the convenience of the defendant not the plaintiff. In probate cases, jurisdiction is almost always dependent on the location of the deceased's real property.

The next level of courts in Arizona are called county courts or Superior courts. The names of the court divisions will vary from state to state. In Arizona, the Superior Courts are those of general jurisdiction. This means that with some limitations, they are the place where all court cases are filed. However, it is not as easy as all that. The Superior Courts are further divided into various divisions. There is a particular Superior Court division that hears probate and other related types of cases. If you lose you case in the Superior Court, under some circumstances, you can file an appeal. There are then two levels of appellate courts: The District Courts of Appeal and the Supreme Court.

OK, now you should get the picture that court cases can become complicated. Not only do genealogists have to consider the time frame cases may take, they need to be aware of the particular jurisdiction and venue for probate cases in the particular area and at the particular time the case may have been filed.

Probate cases that are more complicated keep going by the parties filing additional pleadings or motions asking for certain types of relief. If the heirs are in disagreement, there may be affidavits or statements made under oath filed to support one position or another. There may be depositions, or testimony taken under oath. There may be all sorts of requests for special hearings on evidence or to take further testimony. There may be various types of property valuations requested and on and on and on. The types of pleading filed are really only limited by the ingenuity of the attorneys or clients.

Generally speaking, the longer the probate action goes on, the more valuable the information becomes to the genealogical researcher. But at the same time the research becomes more complicated and may need to be done in different courts in different counties or even different states. Be persistent and make sure you understand the need for and the contents of any document or pleading filed with the court.

If a probate needs to be filed in more than one jurisdiction, these secondary probate actions are called usually referred to as "ancillary probate actions." These ancillary actions are filed where ever there is property, usually real property, owned by the deceased. So take time to research these other jurisdictions. You might be put on notice of this ancillary probate action by a filing in main probate case asking for a postponement or continuance of the action pending the resolution of these ancillary actions.

Finding a probate action may depend on a thorough understanding of the court system, the particular jurisdictions involved and the required venue. All of this depends entirely on the researchers ability to make sure they are researching the right person and have the right locations. An ancestor who death is noted as in "Utah" or "Ohio" or whatever is in no condition for probate research. It would only be chance if you found the correct probate record. You need to do more extensive research to locate the individual and family so that you are ready to determine the possibility of a probate action.

So, it is time to get into the records and start doing the research. If a probate is found, many of the questions regarding the family may be answered.

This is the end of the series. Watch for my next series on Evidence and Land and Property.

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?
Note: Part Seven has several subparts containing an example of a complete probate file with explanations.
The Ins and Outs of Probate for Genealogists - Part Eight - Avoiding Probate with Trusts


  1. James, you rightly say, "You need to do more extensive research to locate the individual and family so that you are ready to determine the possibility of a probate action."

    To use case/docket indexes, it is crucial to have a good idea of family members' surnames. An action regarding a long-deceased person's estate may be captioned as between heirs whose surnames were not that of the decedent, and the decedent may not even be mentioned in the case caption (AB vs. ST, UV, WX and YZ). Court indexes may only be by plaintiff, and practically never index other parties unless in a court of appeal, which might only index the case under the name of the first-listed original defendant (again, not by name of decedent).

    1. A very good point. I should have included that observation.