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"Along Those Lines ..."
by George G. Morgan
Click Here for George Morgan's Archive
| "Where There's A Will, There's A Way" |
One of the most interesting ways to learn about a person and his or her family is through an examination of their will. Wills can tell you a great deal about a person's life. They provide information about a person's financial circumstances, details about their lifestyle, and sometimes vivid, insights into their relationships with family and friends. Sometimes, through omissions or specific exclusions, wills provide telling clues about familial estrangements. Throughout the probate process, there are documents filed by the administrator of the estate (executor or executrix) with the court. When this occurs, records are kept, both in the court's minutes and in the probate packet for the testator. In order to obtain the most information about the records, you should understand what is involved with the settlement of an estate. Therefore, in this week's "Along Those Lines ...", I want to outline the process by which most estates are settled. Certainly, laws vary from state to state, and the types of documents required by the courts and their details may vary too. However, the steps are essentially the same. What is a Will? Let's first discuss some of the terminology. A will is a legal document in which a person specifies the disposition of his or her property after death. The person who makes the will is called the testator, and the will may also be referred to as the last will and testament. At the time the testator dies, he or she is referred to as the decedent or the deceased. The process of proving a will's authenticity or validity is called probate, taken from the Latin words probatim or probare, which means "to examine". The legal body responsible for reviewing and examining materials related to the handling of an estate is the probate court. The person appointed by the court to oversee or administer the affairs of the estate during the probate process is known as the executor or, in cases where a woman is appointed, the executrix. Depending on the size of the estate and/or the amount of detail to which the testator went, a will may be a short document or a lengthy one. A will does not need to be drawn up by a lawyer or solicitor; an individual may write his or her own testament. It is a legal document so long as it is signed by the testator. Usually, however, it is advisable to have two or more witnesses to the signing of the document. This makes the probate process, or proving of the will, simpler because it assures that the signature or mark of the testator is genuine. If the testator decides to change the will after it is made and signed, a new will can be drawn up, signed and witnessed. However, if the changes are minor or if there is an expediency required (such as an interim change to a will while an entirely new one is being drawn up), a codicil can be drafted and signed. A codicil is simply a supplement to a will, usually containing an addition or a modification to the original will. The Probate Process When a testator dies, it is incumbent on his or her heirs to locate the will and any codicils and present them in court. Usually the will is presented by the person(s) who wish to be appointed as executor/executrix, along with a written petition to the court. The petition asks the court to appoint him/her/them executor/executrix. The size of the estate or the diverse interests of multiple parties may cause the court to appoint multiple, co-executors/executrixes. The court accepts the will and the petition, and calls for the witnesses to the will to appear. The witnesses appear in person or may, in unusual circumstances, submit their sworn affidavits attesting to their having witnessed the specific will signed by the testator on the specific date. The date of the will is very important because a newer will supersedes an older one. On satisfactory testimony by the witnesses, the court will admit the will to probate and grant the petition. The court will then issue letters testamentary to the executor/executrix. In some cases, these are referred to as letters of administration, especially in the case of a person who died intestate (without a will). These documents are a legal instrument issued by the court that authorized an administrator to take control of and dispose of the estate of the decedent. The next step is for the executor/executrix to post bond with the court. The will may specifically waive this requirement. The value of the estate must next be determined. Usually, appraisers are appointed by the court, and it is their responsibility to determine a fair market value for all of the assets of the estate. It is the responsibility of the executor/executrix to compile all the information possible in order for the appraisers to do their job. This usually involves the publishing of public notices, usually in newspapers and other publications where the decedent lived and/or conducted public and private business. These advertisements requested all parties who owe monies to or have claims to the estate to present them to the executor/executrix within a specified period of time. The time frame will vary depending on the laws of the state and sometimes on the size and nature of the estate. The appraisers prepare an inventory of the assets of the estate and present it to the court. This becomes a matter of public record and a part of the probate packet. Depending on the estate and the terms of the will, the assets may be disposed of in any number of ways. In a simple will, the assets may be distributed to the heirs. In other cases, assets may need to be liquidated in order to settle debts or to break up the assets into cash value for distribution to the heirs. The executor/executrix is responsible for arranging for this liquidation. This often involves a public sale of the components of the estate. The date of the sale is set, filed with the court, and publicly announced, usually through newspapers and other local periodicals. After the sale, the sale bill is prepared, listing all assets sold and the price obtained, and is presented by the executor/executrix to the court. If there is a surviving widow, the widow's dower is determined. This is the portion of her husband's real property allowed to her for life. Some wills left these assets to the widow outright. However, in older times, the widow was provided for in her lifetime after which the assets were directed to be liquidated and distributed to the other heirs of the estate, usually children or sons-in-law. Different states had different laws regarding a woman's right to hold or own property. It is therefore important that you research land and property laws to determine what laws might have applied at a specific time that you are researching. This effort will give you clues about the types of documents you should look for as you research an ancestor's estate. Payments are received into and claims are filed against the estate. These are catalogued by the executor/executrix and processed. They may include bills for ordinary expenses for the surviving widow or widower, as well as costs associated with administering the estate such as postage and the placement of public notices in newspapers. A periodic accounting is prepared and submitted to the court for review to insure that the estate is being properly administered. At some point, the executor/executrix will file notice with the court that all accounts due have been collected and that all debts have been paid, and that he/she is ready for the court to settle and divide the estate. The executor/executrix prepares a final estate settlement document based on the terms of the will and the final assets of the estate. The court reviews the document and, if the will provided for the executor/executrix to receive a fee for his/her services, the court decrees that the fee be paid. The remainder of the estate is then divided. Real property, that consisting of lands, buildings and mineral rights, are distributed to devisees; personal property is distributed to legatees (a person to whom a legacy is bequeathed). In the case of a trust or trust fund, a trustee or group of trustees are appointed by the court to act on behalf of the beneficiary of the trust. This may or may not be the executor/executrix of the estate, and the documents associated with such an arrangement become part of another legal entity in most states, governed by other specific laws. Receipts for the division of the estate's assets are collected by the executor/executrix and submitted to the court for a final accounting of the estate. Closing It Out While probate laws and customs have differed over time, the steps described above have been relatively common. As you go through a probate packet, you may or may not find all of the documents described in each of the steps above. It depends, certainly, on the size of the estate, the executor/executrix, the probate court administering the estate, and a variety of other factors. The minutes of the court or of the ordinary (the judge of a probate court) may contain details of conversations that took place in the court regarding availability of specific documents or contents of the estate. Therefore, it is often wise to look at both the probate packet and the court records. As an aside, I must tell you that my Great-grandfather Holder's probate packet revealed confirmation of a piece of family lore. I had always heard that he was taken ill on his way by train from Georgia to visit my grandparents in North Carolina. One of his other daughters, I was told, went to Atlanta to bring him home, where he died the next day. In the probate packet was a notation by my Great-aunt Emma Dale Holder, the executrix of his estate. On her accounting records, it showed a refund from the Southern Railroad for the unused train fare. So you see, wills, codicils, probate packets and court records can reveal some interesting insights. Happy hunting! George Click Here for George Morgan's Archive
Copyright 1998 George G. Morgan All Rights reserved "Along Those Lines ..." is a weekly feature of the Genealogy Forum on America Online (Keyword: ROOTS). This column originally appeared in the Genealogy Forum on America Online. You may send E-mail alonglines@aol.com. George Morgan would like
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