I sent this tip out yesterday, but it must be on its way to the moon ... never came back. If you receive two copies, my apologies, but think it got lost somewhere! Sandi WHAT'S IN A WILL? I've discussed wills before but from some of the questions I've received, I feel that some of you might not be all that clear about what's involved in a will, how it was handled and who was involved. Let's start with some standard definitions, most of which hold true for this day and age also. A will or no will? An individual dying testate left a will. An individual dying intestate did not leave a will. The 3 types of wills: 1 - Attested will. Is in writing, has been signed by the maker and has the required number of witnesses. 2 - Holographic will. Written by the maker, signed and dated, but no witnesses. 3 - Nuncupative will - a death bed will; oral dictation by a family member or friend. A holographic will be invalidated under certain circumstances. If anyone else writes on the will it was not considered. Many times this style of will was found by family members among his/her personal effects and it can't be filed with an attorney unless the personal papers found with it are filed also. The nuncupative will has to be filed within a certain time frame and presented before the probate judge within a specified time after the date of the testator. Intestate estates (those without a will) have an administrator appointed and are distributed to the heirs according to the probate laws of that particular state. The widow had her 1/3rd dower; and the husband of a deceased woman had what is called a curtesy right. It could range from 1/3rd to ½ of her estate. Children, even illegitimate children were given their share also, and down to grandchildren. An individual leaving a will, dying testate named an executor or executrix (the female side) to handle his affairs. It was their responsible to carry out the wishes of the deceased in distribution. If some of the bequests went to minors or those of limited mental capabilities, a guardian was designed by the will writer or the court. This guardian could handle the money affairs of the minor or incapacitated. How was the will processed (and still to this day with some variations depending on the state)? 1. A case is begun as a petition by the heirs to receive authority to begin the probate process. This can be given verbally or written. If written, the names of all the heirs, their addresses and relationship to the deceased must be included. This list is filed with the papers dealing with the estate. Verbal petitions were found in the minute books of the court. In either case, the request must include the name of the executor/executrix who is asking to be approve. If there is no will and a petition is issued to proceed with the distribution, the spouse or a surviving child makes the petition and approval comes from the court. 2. If there is a will, the will must be proven. Witnesses to the original will were called to testify and to verify that the testator was of sane mind when he/she made her will and that it was their decision - they were not under any pressure to make the bequests. Wills could be contested at this stage and found to be invalid and it was not entered into the county will book records. 3. If the court finds the will satisfactory, they give written authority to the executor/executrix. The individual named has to file a bond IN AN AMOUNT EQUAL TO THE ESTIMATED VALUE OF THE ESTATE. If the testator requests that "no bond be required" in the will, the state normally honors this. Bondsmen - those who posted bond for this will were normally relatives, heirs or now, bonding companies. 4. An inventory is taken next, if the individual died intestate. Three disinterested parties (in other words, they could not be relatives) are appointed by the court to conduct the inventory and appraise the property. This was to protect the family from "premature sales" and distributions. In early days, the notice of this inventory and appraisal was posted on a door of the courthouse, or in a local newspaper for 3 weeks. 5. While all the above is taking place, the family needed some money to live on. They were given cash or crops and the dower was actually set aside to protect it. 6. Guardians were appointed for the minors or incompetent to manage their share. The guardians also had to post bond. 7. In order to pay creditors or provide support, it was sometimes necessary to sell part of the estate to raise funds. The executor or administrator had to petition the court in order to do this and had to keep detailed records of what was turned into cash and to whom it was distributed and when. 8. Periodic reports could be required during this time frame to be sure that the executor or administrator was doing what was required of them. They had to report what they had done, if property had been sold, and if any of the heirs had died in the mean time. 9. When everything is done, the executor or administrator made a final report to the county showing distribution to the heirs; each heir had to sign a notice that they had in fact received their share. 10. The case is closed and the papers filed. When one looks in the will books found at the county court house, it is likely that you are looking at the county clerk's handwritten transcription, not the actual document. The testator would have to sign that copy however. The original documents were filed away and are available in most counties. As noted before, if a man died testate and made provision for his wife; she could accept or reject his provisions. If she felt she could obtain a better settlement by taking her widow's dower and a renunciation was filed. She did not have to explain why she didn't like his provisions, just that she preferred to take her dower. These renunciations were filed (and copied) along with the wills above. There are variations of course to the above and each state might have slightly different rules. The laws changed from year to year also and I have not attempted to give every state's variation. Community property states of today have different steps. As a final note, the bondsmen didn't lose any money when they posted bond unless there was an unqualified or dishonest administrator or executor who abscounded with all the property! (c) Copyright 22 August 2002, Sandra K. Gorin. All Rights Reserved. sgorin@glasgow-ky.com Col. Sandi Gorin Publishing: http://ggpublishing.tripod.com/ GORIN worldconnect website: http://worldconnect.rootsweb.com/~sgorin SCKY resource links: http://www.public.asu.edu/~moore/Gorin.html