When There is No Probate

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When There is No Probate

Probate records are one of the best genealogical sources. The problem is that not every ancestor who lived 
left a probate record. There are several research methods that should be done when a probate cannot be 
located and many reasons why your ancestor might not have a probate file even when they owned property 
upon their death.

There Was Just Nothing To Probate
The first possibility is that your ancestor simply had no estate worth probating. There might not have even 
been enough money to bury your ancestor, let alone enough to warrant the necessity to probate the estate. 
In some states, estates with a value under a certain amount might not have even been probated. One of my 
relatives died in a mental institution one hundred miles from his home in the 1910s. The family did not have 
the money to bring the body back for burial and his body was donated to science. There is no probate file 
for this ancestor, nor a tombstone. I was lucky to obtain a death certificate.

Your Ancestor Intentionally Avoided Probate
Did your ancestor transfer all his property to his children before his death? My ancestor in the 1880s sold 
all his real estate to his children when he was in his late seventies. Upon his death there was no real 
property and it apparently was not worth a probate just to settle his personal effects. A search of probate 
records led to no results. However, there are land records documenting his transfer of his real property to 
his children. The price of each farm (the "consideration") on these deeds was "a dollar and love and 
consideration." No relationships were specifically stated, but the lack of a real transfer price was an 
indication of a likely relationship between the grantor and grantee.

Probate Was Delayed Significantly
I have another ancestor who died in 1893 and whose estate was never probated, even though there was 
significant real and personal property. When the ancestor's wife Nancy wanted to sell the farm in 1907, 
she was unable to do so in her own right—she was not the sole owner of the farm. Upon her husband's 
death, she and her children in the aggregate became owners of the farm. Nancy inherited one-third of the 
property (based upon the applicable state law at the time), but her portion of the farm was never specifically 
partitioned off. An additional complication was that one of her children (and also one of her husband's heirs 
and another co-owner of the farm) was a minor at the time Nancy wanted to sell the farm.

In this case, a partition suit was file by Nancy with the circuit court in order to allow the farm to be sold. A 
guardian ad litem was appointed for the minor son to represent his interests in this case. There was no 
probate of the estate in 1907; the father had already been dead fourteen years and the court was not going 
to begin probate proceedings that long after the father's death.

Records of courts other than the probate court should always be checked as a part of the research process. 
Even if your ancestor has a probate file it is possible there was some additional legal action regarding the 
estate that took place in a court other than the one that administered estate settlements.

There Was A Guardianship?
Is it possible your ancestor was survived by minor children and that a guardianship had to be arranged to 
oversee their inheritance? Perhaps the actual records settling your ancestor's estate are contained in the 
guardianship records and not in the probate records. Guardianship records should be searched even if the 
mother survived. Throughout much of American history, women have had few legal rights and they generally 
could not legally manage their children's interests upon their husband's death (despite the fact that the 
widow might have been very capable in her own right). Mothers were not necessarily appointed their 
children's guardian either. A male relative, neighbor, or subsequent husband might have received the honor 
or might have been appointed guardian in addition to the mother herself. Guardianship records should 
always be accessed if a person died with minor children and some real property, regardless of whether 
the spouse survived him/her or not.

The Tradition Was Wrong
Check out stories of great estates held by forebears—the only greatness might be the size of the story a
nd not the property. One lady for whom I did research some years ago insisted her ancestor had a vast 
estate in the southeastern portion of the county where the research was conducted. That statement alone 
raised my eyebrows and the cynical gears in my mind began turning. No estate, guardianship, or land 
records could be located despite a diligent search for all reasonable spelling variants. The ancestor in 
question was located in the 1860 census with the wife, and the correct eight children. They were listed by 
the client. The ancestor is enumerated as a day laborer with $50 in personal property and no real estate. 
The reason for the lack of estate or guardianship records seemed fairly obvious, but was not positively 
received by the client. Additional and more comprehensive research may explain what appears to be an 
inconsistency. Family traditions are not always correct. Interestingly enough, the client still insisted there 
was a large farm owned by this ancestor in the county and that I simply had overlooked the records or that 
all the deeds, estate paper, and other documents had never been filed.

There Are Post-Death Land Records Instead
I have seen cases where an individual owned land and the only record after his death is a quit-claim deed 
where the heirs transferred property to another heir or to someone from outside the family. If there was 
nothing else to settle and the heirs agreed (a feat in and of itself), there might not have been a legal reason 
to probate the estate. Of course, whether or not a probate was "required" will vary among states and from 
one time period to another. A search of land records after your ancestor's death should be conducted to see 
if any such records can be located. Of course, these land references are likely not indexed under your 
ancestor's name (the ancestor is dead and dead people are typically not listed as grantees on land records). 
Searches for these records should be conducted in the buyer and seller indexes to land records for the 
names of all children (including married daughters).

State Statute Makes A Difference
Remember that what is generally true about probate in one state may not necessarily be true in another. 
Different states have different requirements about the probate process and an estate that may have to be 
probated in one state may not have to be probated in another.

Checking The Last Survivor?
It seems that there is a greater chance of an estate record for the surviving spouse instead of the one who 
dies first. While there are always exceptions to this rule, I always make certain I check for probate records 
for the spouse who dies last. Women are also more likely to have a probate file if they survive their husband.

Looking In The Right Place?
Estates are generally probated where the bulk of the property is located or where the person lived the latter 
years of their life. Are you looking in these locations? If your ancestor lived near the county line have you 
looked in both counties?

Is The Ancestor Dead?
Make certain you are looking in the probate index for the time period when your ancestor is actually 
deceased. It's usually a good idea to look in estate indexes for a time period up to twenty years after your 
ancestor's death. Looking in these indexes for twenty years before your ancestor died is another matter 

General Probate Advice
All applicable surname variants should be included as a part of this search—do not get hung up on the "right" 
spelling. The earlier the record, the more likely the spelling is to be "off" and the more one has to rely on 
whether the name "sounds the same." Do not be surprised if no record is located. While records of probate 
are a great genealogical source, they do not exist for every dead person. If your ancestor does not have a 
probate make certain that in addition to searching all other appropriate records you have also searched for 
probate records of other extended family members. A probate file on another family member may be the clue 
you need to break that brick wall.

In future articles, we'll discuss families whose financial status causes them to fall through the cracks of many 
record sources used by family historians.

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