Probate process explained at Oklahoma genealogy meeting
At the January Southwest Oklahoma Genealogical Society meeting, Ellen John discussed the various steps of the probate process and some of the documents that are found in estate administration records. She has done her homework and more as far as genealogical research is concerned.
The many hours she has spent in courthouses from Virginia and the Carolinas, through Kentucky and into Arkansas and Oklahoma sifting through dusty files and trying to read old and faded handwriting has led her to family members and stories that opened new trails to follow.
In her opening remarks, she explained that sometimes the richest and most revealing genealogy records are created after a person's death. The process of proving a will or being granted administration of the estate of a person who died intestate (without a will) often generated a series of probate records. And it is those probate records that are some of the most valuable ones for the genealogist. What can be found in them often answers questions that have been asked for several generations. Here are some tips Ellen John offered for locating probate records.
* References to the probate of a person's estate will be listed in the will index book in the courthouse. The entries in the index book refer you to pages in the will book. The will that is recorded in the will book was copied from the original will by the court clerk, who was supposed to record it accurately. Remain alert: Sometimes they did not. The other documents pertaining to an estate that you find in the will book also have been copied from the original documents.
* The original copies of estate probate papers were kept on file at the courthouse and might (repeat might) still exist today, folded in packets or in file folders. Some courthouse offices have disposed of original probate papers since the information was recorded in the will or probate books. Sometimes they disposed of them because of lack of storage space. Sometimes original probate papers have been turned over to the state or local archives.
* If your ancestor did not make a will but owned property of enough value to probate, you should still look for his probate case.
* Many of the large, official will and probate books at the courthouse have been microfilmed by the Church of Jesus Christ of Latter-Day Saints. You can check the Family History Library Catalog at https://familysearch.org to find out if a will or probate index is available on microfilm for your particular county of interest.
* Your ancestor's will might also be listed in a will index or will abstract book in the Lawton Public Library's Family History Room or the genealogy section of another public library. You might also find that the will has been transcribed online or at least listed as part of some type of will index. Do a Google search or check at http://usgenweb.org for the state and county of choice. Some people have included will and probate documents in their family trees at Ancestry.com or on personal websites.
How was this probate package created?
* The executor of the estate presented the will in court with proof that the deceased had signed the document. The court approved the executor so that probate could begin. (Existence of a will = testate estate.)
* If there was no will, the principal heir petitioned the court for letters of administration. The court approved the administrator so that probate could begin. (No will = intestate estate.)
* After approval of the executor in a testate estate or the administrator in an intestate estate, the probate process described below was the same.
* The executor/administrator posted bond equal to the estimated value of the estate. At least two men who were sureties, or securities, and the executor/administrator signed the bond.
* The court appointed three to five disinterested people to inventory and appraise all the property of the estate. These were usually neighbors and often relatives of the deceased who had no heirship.
* Sometimes an allowance was set aside for the widow and minor children from a portion of the estate until the estate was settled or some cash was generated.
* A guardian was appointed by the court for a child (or children) not of legal age who was referred to by the court as an "infant" or an "orphan." The "infant" did not live with the guardian. The guardian's role was to protect the child's legal rights and interests in the estate due him through his deceased parent.
* The report of sales of the estate usually listed each item sold and for how much. Many times this report listed the purchaser(s). These names can be important as they may be other family members.
* Various other reports directed by the court were submitted by the executor/administrator and usually dealt with receipts and disbursements.
* Notices of publication were issued at various times, especially before the final settlement of the estate.
* After all debts were paid and money received from those who owed the estate, the balance was distributed to the heirs in accordance with the terms of the will or as determined by administrator if the deceased died intestate.
* The original estate papers in a probate packet often contain signed receipts from each heir, given when he received his portion of the estate.
* A final settlement report was presented to the court which ruled the estate as closed.