Wills, Intestates, & Probate

Wills were subject to both common law and statutes during colonial times.   Although we will use the term “will”, there is a historical distinction between a will (meaning an instrument that devised land), and a testament (meaning an instrument that bequeathed personal property).   This was not a trivial distinction, for real property and personal property were treated quite differently under the law.

A Bit of History

The basic structure of the laws regarding wills was set forth in the English Statute of Wills (1540) which permitted land to be devised by a will.    However, only wills dispensing land had to be written, and neither a signature nor witnesses were strictly required.   More than a century later and fifty years after the settlement of American colonies, the Statute of Frauds (1677) set forth the basic requirements – a will must be in writing, signed by the testator, and witnessed by three credible witnesses.   Not until long after the American Revolution did England specifically address wills in detail in the Wills Act (1837).

Who Could Make a Will?

Any male aged 14 or more, or unmarried females aged 12 or more, could make a will to bequeath personal property.   (After the Revolution, most states increased the age requirement to 18.)   However, only males or unmarried females over 21 could devise land in a will.

Married women could not make wills unless permitted by their husbands.  A married woman could own land, either inherited or purchased while single, but generally could not devise that land in a will.  A married woman could not normally bequeath personal property either, since her personal property was also her husbands.  It was possible for a married woman to make a will to bequeath personal property with the consent of her husband, but this is unusual enough that genealogists rarely encounter it.  A somewhat more common case, found mainly among the wealthy, is the prenuptial agreement which permitted a woman to retain her personal property and dispose of it to her heirs.  Prenuptial agreements were usually written to have the same effect as wills, so that no subsequent will was necessary.

Types of Wills

Wills could be either written or oral (nuncupative).   Written wills were often constructed by a clerk or attorney from instructions provided by the testator.  At least two witnesses were required unless the will was actually written by the testator himself, when a single witness would suffice.  Generally, the witnesses could not be persons having an interest in the residual estate, otherwise the will, as it related to them, would be invalidated. However, a person who received a specific bequest in the will could be a witness if they had no other interest in the estate.  (In some jurisdictions even a specific bequest was forfeited.)

A holographic will is one that is written in the testator’s own hand, dated, and signed, but not witnessed.   If the testator’s handwriting and signature could be proven valid in court by the testimony of credible witnesses, these wills were routinely accepted insofar as bequeathing personal property.  Whether holographic wills could devise land depended on the time and place.

A nuncupative will is an oral will spoken in the presence of witnesses.  Nuncupative wills were subject to several restrictions under common law, mainly intended to assure their validity.  First, they were valid only when made during a “last sickness”, that is, on a deathbed.  The oral will was invalidated if the testator recovered from the sickness.   Second, they were valid only where no previous written will existed.  That is, a nuncupative will could not supersede a written one.   Third, more witnesses were required, at least three.  A nuncupative will had to be reduced to writing for recording purposes (within six days according to Blackstone) and was generally invalid if not recorded within a reasonable time period, rarely more than six months.  Recognizing the possibility of fraud, common law provided that nuncupative wills could not be proved for fourteen days in order to give the widow or nearest kin an opportunity to dispute it.

Purposes of Wills

In the absence of a will, the inheritance laws applied.  The usual purpose of a will was to avoid this in some way.  Typical reasons were:

  • Control Property Distribution – Wills typically distributed land and personal property differently than the intestate laws would otherwise have provided for.  Indeed, that was the main purpose of most wills.  The distribution of both real and personal property could be deferred or adjusted to suit the needs of the family.  In the southern colonies, land ownership was much more extensive than in England, so testators also typically had more land to distribute and more opportunity to make gifts to their older children prior to making their wills.
  • Support the Widow – Wills could also be used to leave a widow with more property than she would otherwise have received.  They could not accomplish the reverse without the widow’s consent.  That is, the will of a married man could not abridge his widow’s dower interest or her interest in his personal property unless she permitted it.  A widow who objected to a will could renounce it and appeal to the court, though her interests were limited to preserving her own dower rights and not to the will’s provisions for her children.  Her dower right was a one-third lifetime interest in the land and, during most of the colonial period, she had a one-third (or one-half) interest in the personal property as well.   The lifetime interest in land was meant to permit her to share in rents and profits, but did not bestow title or give her the right to sell or devise the land herself.  Her interest in the land dissolved at her death – or earlier, if she relinquished it.  That is why we often see sales of inherited land that are made subject to the widow’s rights.  (See the separate paper on dower and its male counterpart, curtesy.)  A very common provision of wills was to give the widow control and possession of land (but not outright title) until the youngest heir reached majority.
  • Apply Conditions and Contingencies – Wills sometimes bequeathed property to minors subject to conditions – for instance, upon reaching a certain age or upon the death of the widow.  Unless the will specified a conditional heir, the law treated these conditional gifts as the property of the minor.  That is, if the minor died before meeting the condition, and the will did not name an alternate heir, the legacy fell to the minor’s own heirs under the laws of succession rather than reverting to the estate.  In particular, a legacy left to the widow for her lifetime and then to be vested in a child was treated as the property of the child; if the child died before taking possession the legacy was vested in the child’s own heir (usually the eldest brother).  If the legatee died before the testator, anything left in the will to that legatee reverted to the residual estate.

Restrictions and Special Cases

We occasionally find wills in which not all the land is distributed, or in which the eldest son is ignored.  Primogeniture (see separate article) held that any land not specifically bequeathed fell to the eldest son, thus some testators did not find it necessary to be specific about the eldest son’s inheritance.  Any land not specifically devised by the will fell to the natural heir.   Similarly, if one or more of the legatees had predeceased the testator, a new will may not have been made if the testator was wiling to permit the succession law to apply to their shares.

A similar situation is the case of land acquired after the will was written.  The law, until far into the 19th century, held that a will could not devise land that was not actually owned at the time of the instrument.   Any such land was also subject to primogeniture.  (Incidentally, the need to make a new will whenever new property was acquired helps to account for the peculiar fact that so many wills were written so close to the testator’s death.)


Most wills name executors.  Although it was technically possible for a person aged 17 or more to act as an executor, the limited powers of minors assured that virtually all executors were adults.   If a will, written or nuncupative, failed to name an executor the court appointed an administrator under the same process as for intestates.   If the executor refused to serve, resigned, or died, a similar situation arose.  When this occurred, we usually see the court using a term something like administrator with the will annexed (cum testamento annexo) , which indicates that no executor qualified and the will was being administered by a court appointee.   Executors and administrators of wills had the same powers, though administrators could not exercise them until their formal appointment.  Both executors and administrators were required to post a bond equal to the approximate value of the estate (the personal property) unless the will explicitly absolved the executor of the bond requirement.

Probate Process for Wills

One cannot assume that wills were proved promptly, that is, that a person died immediately prior to the proving of a will.  For one thing, courts met on schedules and the parties necessary to prove it and post bond may not have been available at the earliest possible court date.  For another, it was not necessary to prove the will in order to empower the executor.  The executor had the power to bury the testator and to pay or collect debts regardless of whether the will had been proved.  Ownership of the deceased’s personal property was vested in the executor at the death, and was not distributed to the legatees until after debts were paid, so there was no strict legal necessity to actually prove the will immediately.  It is not particularly unusual to find wills proved many months, even a year or more, following the testator’s death.  In fact, under some conditions, that was a useful means of delaying payment of the deceased’s debts.

It is also important to note that the executor had no duties or powers regarding land, for land was immediately titled to its heirs, regardless of their age.  No action was needed, or allowed, by the executor in order to transfer title to land.  The executor’s (or administrator’s) responsibilities were limited to the personal property – the “estate”.

Intestates & Primogeniture:

Inheritance laws for persons who died intestate (without a will) are particularly important to genealogists, for we can learn much from the succession of land.  These laws not only applied to intestates, but also to any land or other property that was not specifically distributed in a will.  The southern colonies followed English common law in this regard until after the Revolution.

Recall that there are two types of property:  land (real property) and goods and chattels (personal property).  Primogeniture applied only to the real property.  Throughout the colonial period, the land of an intestate passed directly to a heir in a specific line of succession completely outside the probate process.  The first in the line of succession was the eldest son.  If the eldest son was dead, the land passed to his own eldest son.  If there was none, then the land passed to the deceased’s eldest brother.  And so on through a clearly defined line of succession.  (See the separate paper on Primogeniture.)  Any succession was subject to the widow’s lifetime one-third interest.  If there was a will, but it failed to devise land, the same succession applied.  As mentioned above, one occasionally sees wills that ignore the eldest son because his interests were already protected by common law.

The southern colonies retained this system until after the Revolution, when each new state abolished primogeniture in favor of a system of distribution that was the same for both real property and personal property.  In 1785 Virginia passed a law, effective in 1787, which provided that an intestate’s land and personal property be equally divided among all the children, both male and female.  If there were no children, a detailed line of succession was applied.  A 1784 North Carolina act provided that the land would be shared equally among the sons, or among the daughters if there were no sons: this was amended in 1795 to give equal shares to both sons and daughters, as in Virginia.  South Carolina passed a similar law in 1791, providing that the children would share equally regardless of gender. Georgia had passed a similar law in 1777.  Note that in each case, the notion that grandchildren would represent their deceased parent’s interest was retained.

The personality, or moveable estate (the personal property) was treated differently.  The law regarding division of personal property changed from time to time, but it generally allowed the widow a one-third share if there were children, and a one-half share if there were no children.  The remainder of the personal property was distributed equally among the children (or if none, among others in the line of succession.)  Because, unlike land, the estate (the personal property) was divided, it had to be inventoried and valued before being distributed.

If a person died intestate, the court was obligated to appoint an administrator to inventory and value the estate, and then to distribute it to the heirs.  Preference was normally given to the widow.  If she declined, the court would appoint another adult heir, giving preference to the order of inheritance [‘nearest kin’] subject to the court’s desire to have local residents serve.  Occasionally one finds creditors appointed to administer estates where no heir was able to serve or particularly when the deceased owed debts that exceeded the value of the estate.    The administrator was required to post a substantial bond, approximately equal to the value of the estate, as a guarantee both to the management and preservation of the estate and to its distribution.

A heir could renounce his rights to the personal property, and one occasionally finds such records.  However, a heir could not renounce his rights to land, for title to land passed outside the realm of the courts or the probate process.  The only means of renouncing inheritance of land was via a deed.

I should note that whether slaves were treated either as personal property or as real property depends on the colony and time period.

Probate Process

Wills were required to be proved in the deceased’s county of residence.  Likewise, letters of administration for intestates were to obtained in the county where the deceased lived.  Note, however, that wills could also be proved in a second county if the deceased owned significant property, to permit the executor to file documents in a more convenient court.  This also occurred if the executor or administrator moved to a new county of residence before completing his duties.

After wills were proved, or administrators appointed for intestates, and the necessary bond obtained, the court required the administrator or executor to produce an inventory of the personal property.  It then named three appraisers to value the personal property and to confirm the inventory.  The appraisers were almost always close neighbors who were not related and who had no personal interest in the estate.  The administrator paid them for their service.  The executor or administrator typically then arranged for one or more estate sales to sell crops and other goods not required to support the family, in order to raise money to pay off the deceased’s debts or to convert the estate into a form easily divided among the heirs.   Heirs could “purchase” goods in the sale against the value of their share.  Finally, and often considerably later, the residual property was distributed to the heirs.   Recall that heirs to land received title immediately upon the deceased’s death, regardless of their age.  Heirs to personal property typically did not receive it until reaching majority (or marrying, in the case of women), it being managed by a guardian or remaining in the estate in the meantime.

The justices of the county court were legally responsible as individuals for equity under this process, and so paid a great deal of attention to assure that the process was followed.  If the executor or administrator bond was not sufficient to cover mismanagement, or if the estate were distributed contrary to the provisions of the will or the law, the members of the court were personally liable for making good on any inequity.  As one result, courts required periodic accountings of the estate though and including its distribution to the heirs.

I should note that not all estates followed this process.  Oddly, there was no law that required surviving family members to notify the authorities of a death.  In Virginia, family members were required by law to notify the local parish of a death, but were not required to notify the civil authorities.  Nor was there a legal obligation to record a will.  Then, as now, probate was expensive – appraisers, administrators, court clerks, and sheriffs were all paid for their services in the process.  Persons who were debt-free with very small estates often had informal probates that don’t appear in the records.  In cases where family members agreed among themselves on the distribution of personal property (and no creditors or heirs objected), the death may never have been reported to the court.

Virginia’s 1748 Probate Statute

The laws of England and traditional common law were applied in colonial Virginia with very few modification for local conditions.  Hening’s Statues at Large mentions a few, mainly genealogically inconsequential, acts affecting probates.  For the most part, these were consolidated and clarified into a 1748 statute [Hening 5:456] to be effective in mid-1751.  The act had little effect on the genealogical value of probate records, especially since it largely confirmed procedures already in place.  The main genealogical aspects of the act were as follows.

The statute required a waiting period of fourteen days after a testator’s death before a will could be proved.  It also required probate in the deceased’s county of residence, regardless of where the estate was located, although it also permitted probate in the General Court if the value of the estate was at least £100.   In the case of administrators, it contained an explicit sequence of preference for administration, starting with the widow, then the children, then parents, siblings, and so on.  The statute also confirmed the right of a testator to preserve the family’s financial privacy in a few important ways.  For example, a will could exempt the executor from giving bond, but the statute permitted the court to nevertheless require a bond under some conditions.  In addition, a will could direct that the estate not be appraised.