Mary Ann -
Do you have any idea why a person in Virginia, mid 1700's, would have used a
"Deed of Gift" instead of a Will?
I have an ancestor who left a Deed of Gift...giving each of his children a
"feather bed & its furnture", and naming (3) slaves to each child, but
nothing else. He left the real property (land) to his wife. Then she
turned around, and by "Deed of Gift" gave her youngest son control of the
land, slaves, etc. until her death.
Why wouldn't a Will have accomplished the same thing?
Jan C.
-----Original Message-----
From: ottowun(a)home.com <ottowun(a)home.com>
To: INKOSCIU-L(a)rootsweb.com <INKOSCIU-L(a)rootsweb.com>
Date: Wednesday, July 18, 2001 2:19 PM
Subject: [INKOSCIU] Wills, Inventories & Probate Records
This is to all of you who have questioned the will index and various
probate records.
Each Circuit Court in Indiana (and sometimes the Superior Court later
created by
statute) is given probate powers. The clerk of the court
generally keeps the files and records of the Courts. Once upon a time, in
the good old days, records were kept by handwritten entries into ledger
books, as well as by means of any document or order physically kept in the
file folder for the case. Occasionally certain records were kept in
separate indices. The state generally determined what manner the clerks
kept the records so that there was some uniformity between different
counties. Most counties used an alphabetical system, as well as a numbering
system, and in some cases a "by date of entry" type system.
In record keeping, for example "O-81" would mean to look in the clerk's
volume for the letter O and on page 81 would be the information referred to.
Sometimes various specialized indices were abbreviated, such as "AER" for
Administrators, Executors Records"; "WI" for Will Index, and so forth.
When a person dies in Indiana (and in most other jurisdictions, he (or she)
dies
testate or intestate. These terms mean either with a will or without a
will, testacy being the state of having written a will before death which is
intended to take effect at death and which is executed in all respects as
called for in the statutes.
Probate is the process of proving that the written document is the wil of
the
decedent by determining that it meant to take effect after death and
that it was signed with all the formal requisites required by the statute in
effect at the time of the writing. Generally, to prove a will, one of the
living relatives took it to the judge with probate jurisdiction along with
the witnesses or affidavits from the witnesses (if they were alive and could
be found) that they had seen the decedent sign the document, were all in the
room at the same time and signed the will as witnesses as requested, in
addition to the fact that the decedent was was at least 18 and of sound mind
and disposing memory at the time this occurred.
Whatever was left by the decedent which had been owned solely by him in his
own name
at the time of his death was his estate. Any property jointly
owned went automatically to the surviving owner. The solely owned property
is both referred to as the probate property and the estate and it is the
property which was affected by the terms of the will as to whom it would
next pass due to the death. It was also the only property of the decedent
subject to the claims of his creditors, whoever they might be.
The person in charge of the estate was called the Executor (Executrix if
female) if
there was a will and the person appointed to be executor in the
will was so acting. Otherwise, if there was no will or the executor named
could not act, the person taking care of the estate was called the
Administrator. Both the Executor and the Administrator fall into the larger
category called Personal Representative.
The Personal Representative is charged with collecting the assets of the
decedent,
paying the expenses of the administration of the estate, paying
for the funeral and burial, as well as the final medical expenses and the
legitimate debts of the decedent.
To do so, the laws require the personal representative to prepare and file
an
inventory, listing all of the property owned by the decedent at the time
of his death which was solely owned by him. This includes real estate,
tangible personalty (household goods, furnishings, livestock, vehicles and
so forth), intangibles (stocks, debts owed to the decedent, rights to sue
someone for money) and anything else that is of value.
Whatever the estate is composed of, after all of the expenses were paid,
was
distributed either as specified in the will or by the laws of intestacy.
Over the years, the process of administering the estate, determining who
inherits,
challenging a will, filing a claim by a creditor, has been
streamlined, but in the 1800's and certainly during most of the 1900's
elaborate records were kept detailing what was left of a person's life.
Today's records will seldom be of any value to the genealogist as the old
records are.
Copies of records are generally available from the county clerk or whatever
repository the records have been directed to. Currently, most counties
charge $1.00 per page to make photocopies. Certification costs another
dollar and authenticates that your copy was in fact found in the court's
records in the form reproduced for you.
It would certainly be unusual to find no inventory for an estate much
before 1980.
In the 1800's most will contests and claims disputes involved
family members and neighbors. Today, it is more likely to also include
banks and credit card issuers, medical creditors.
I hope this is of value to those of you wondering what is in these records,
why they
were kept and whether they are of value in checking what great
grandpa had.
In the time when the husband usually owned the property, rather than it
being owned
jointly by spouses (as is common today) much more information
can be found for most men than for most women.
Respectfully submitted,
Mary Ann Wunder, Attorney
Indianapolis, IN
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