Meaning of Probate
Probate is the term for a legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person’s will or the estate of a deceased person without a will. Probate is a legal process that administers the distribution of a deceased person’s assets. The process is overseen by a probate court. This court has the legal authority to decide matters related to wills and estates.
During probate, the court will determine whether the will is valid. They will also appoint an executor, locate and value assets, and pay the decedent’s debts out of the estate. The residue will then be distributed to the decedent’s beneficiaries and heirs.
How Does Probate Work
Whether or not a person has a last will and testament in place at the time of death, any assets that do not pass directly to beneficiaries must go through the probate process. The process, in theory, is quite simple.
To probate a will or estate without a will, the probate court assigns a representative, who will gather and list the deceased’s assets, pay any outstanding debts, bills, taxes, and fees, and then distribute assets to the intended beneficiaries according to probate law. A probate attorney is often retained to help guide the representative, they are called an executor or administrator, through the probate process.
Probate Records for Document and Wills
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 may be found in probate files. 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.
Estates were probated for approximately 25 percent of the heads of households in the United States before 1900, whether or not the individual left a will. The percentage was higher for rural areas than for urban areas because of the greater likelihood of land ownership for farmers. Because wills often list the names of many family members, as much as half the population either left a will or was mentioned in one.
While probate records are one of the most accurate sources of genealogical evidence, they have limitations.
Jurisdiction
Probate is a function of state governments. Therefore, the laws and resulting records vary from state to state and changed over time. Probate records for many states can be found at the local county courthouse. The particular office of jurisdiction might be that of the Probate Court, the Equity Court, the Register of Wills, the County Clerk, the Circuit Court, or others. Some colonial records were kept by the town or the colony. See the wiki pages of each state for more information on pre-statehood, historical, and current probate records and jurisdictions.
The U.S. government had jurisdiction over the probate records for Native American or Indian tribes. The Bureau of Indians Affairs had agencies responsible for regional groups of recognized tribes. The Field Office of the appropriate tribal agency kept any probate records. These are found at the National Archives branch designated to archive the records for the pertinent agency.
Historical Background
United States probate law derived from English common law and from Spanish community property law, depending on the state. Under English common law, a married woman could only make a will of real property with her husband’s consent or with an antenuptial contract. Under Spanish community property law, property acquired while married belonged equally to husband and wife. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington are community property states.
Probate matters for the original English colonies were handled under English law. In fact, some American wills were proved in England and Scotland. The American Colonial Probate Records article further explains how to find these wills.
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FAQs
How can I find out if probate is needed?
Whether or not probate is needed depends on what assets the deceased person owned, and whether they owned them in their sole name.
What is a Grant of Probate?
A Grant of Probate is the document that is issued to you by the Probate Registry. The document confirms your right to administer the deceased’s estate.
How Does Probate Work
Whether or not a person has a last will and testament in place at the time of death, any assets that do not pass directly to beneficiaries must go through the probate process.
