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Appalachian
American Genealogy |
| Wills are undisputed evidence as to relationships to the Testator. |
Wills and Estates |
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English Estates of American Colonists, 1610-1699 English Estates of American Colonists, 1700-1799 English Estates of American Settlers North Carolina Will Abstracts, 1660-1790 Abstract of North Carolina Wills [1663-1760] North Carolina Will Abstracts, 1760-1800 An Abstract of North Carolina Wills
A Genealogical Collection of South Carolina Wills and Records by
Willie Pauline Young, Pauline Young - Reference - [1984] - 328 pages |
People died either having a Will [testate] or without a Will [intestate] and their Estate was probated in the county in which they died [Estate Administration] and other counties where they owned real property [Ancillary Administration]. Estate Administration was most often conducted in the county Probate Court or the Court that had jurisdiction at that time over the administration of Estates. If they had a Will, then it was usually included in the Probate Court Minutes within a short time after the decedent's death. Letters of Administration were issued by the Court appointing an Executor to oversee the administration and distribution of the Estate's assets. This Executor [male] or Executrix [female] was either designated within the Will or if an intestate administration, the Court would appoint them. Executors must also have been residents of the same state where Probate was to take place. They served in a fiduciary capacity meaning that they were responsible for periodic reporting of all activities to the Court and had to prepare accountings of what monies were collected and distributed. Spouses were entitled to either accept their bequest cited in the Will or to renounce it and take their Dower [wife] /Curtesy [husband] share equal to a child's portion of the estate's assets. If there was no Will, spouses were still entitled to their dower or curtesy rights. If they chose to enforce these rights, then all property they received would become their own property outright, free and clear. Spousal bequests in Wills would often be structured as a terminable interest or a life estate in said property; meaning, after their death the property would automatically revert to someone else as stated in that Will, usually their children.. The heirs to the life estate property after the life tenant's death, were called 'remaindermen' and their interest in the property was also a terminable interest; i.e., they would not receive outright fee simple title until after the life tenant's death. So for as long as the life estate interest holder stayed a live, remaindermen were tied to one another in the decisions concerning that property. This practice would keep the homestead from falling into dubious hands if the wife re-married, keep the value of the property, and would require notice to both the life tenant and remaindermen about any action taken regarding the property such as mortgages. It gave some assurance that the children would eventually own their father's land without lost of value. Step-mothers were the ones that often renounced their life estate and chose the dower-share option so that the property would then go to their children and family, bypassing the decedent's children; or, it was just greater value. Researchers should look for other court proceedings objecting to the dower share; and if found, then this is a red flag to the possibility that the wife was not the only wife of the deceased. Minor children of the Decedent were often bound to another adult male by the Court as their temporary guardian even with their mother was still alive. They served as the guardians of the minor's property received from the Estate. The mother usually continued to be the natural guardian of the child's person. Today, guardians of minor children are usually only appointed when both parents are deceased or that their parents have been legally declared unfit. Researchers will need to know what constituted 'minority' at the time of the Estate. The age may vary from state to state and vary over time. Genealogy researchers should also understand that when real property passed on to the heirs of an Estate, there was not usually recorded in the deed records anything to show this transfer. Researchers will need to look in both types of courthouse records to follow the chain of title to the land. The Laws of Decent and Distribution also varied from state to state. Genealogy researchers need a general understanding of these laws to know how Estate assets were distributed in an intestate administration. Also today, who gets what and in what order is not necessarily the same as it was as these laws have changed over time. Some states may say that the children are first in line, while other states say that the spouse is first in line. If there are no children and no spouse still alive, these laws address which other family members are next to inherit. Multiple Lineal Descendants received their inherited property either per stirpes or per capita. Per Stirpes "...denotes the method of dividing an intestate estate where a class or group of distributees take the share which their deceased would have been entitled to, taking thus by their right of representing such ancestor, and not as so many individuals." Per capita "...denotes that method of dividing and intestate estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree to the decedent, without reference to their stocks or the right of representation." [Source: Black's Law Dictionary, Revised 4th Ed., West Publishing Co. 1968] Homestead was the husband's and wife's primary residence, the land underneath the house and often all land contiguous to it. Homestead Exemption has to do with today's real property tax calculations. These are two entirely different concepts concerning real property. There are two important dates concerning Wills and Estates. The date the Will was written and the date of the beginning of the Probate Administration. Court records may reflect the actual date of death of the deceased; but if not, researchers will know at least an approximation of the death date. They died either between the Will date and the Probate date or within 30 days of the Probate date.
Wills are one of genealogists' favorite documents as
they usually show family names for the wife, children, grandchildren and even
in-laws. Wills are undisputed evidence as to relationships to the Testator.
For people dying before the 1850 census, Wills and Bibles are often the only
available sources for learning children's names. It is always best to locate an
entire transcription of a Will because abstracts do tend to leave out important
information. See:
Abstracts
vs. Originals. African American researchers use Wills to learn slave
names that abstracts often omit. Will abstracts do tell many important things,
such as a Will exists and where to locate a copy of the original Will in its
entirety. |
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For finding individually transcribed Wills on-line, we suggest a surname search using: |
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Home Page ©Copyright 1996-2010 CATindell, Cherrylog, GA. All Rights Reserved. Disclaimer: Some of the above information was provided by our domain owner who was a former nationally recognized Certified Legal Assistant [CLA] in Estates, Trusts, Wills and Guardianships, Real Estate, Contracts, and Litigation. She also maintained her FL real estate broker's license for over 25 years and a Bank Officer heading up a state-wide trust real estate department for a major bank. It is solely general information to help fellow genealogists. For further information concerning Wills and Estates, consult an attorney. |
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