This section is from the book "Hill's Manual Of Social And Business Forms: A Guide To Correct Writing", by Thos. E. Hill. Also available from Amazon: Hill's Manual Of Social And Business Forms: The How-To-Do-Everything Book Of Victorian America.
HAVING made a will, the testator should recollect that marriage, birth of children, death, or the purchase or sale of real estate may affect the will. So the death or removal of executors may require a change. These alterations may be made by a codicil, which must be executed and witnessed the same as a will.
The will, enclosed in a sealed envelope, indorsed "Will of A. B.," should be kept in safe custody under the control of the testator. It should not be placed for safe keeping in the hands of interested parties, nor beyond the reach of the testator. It should also be placed where it will be absolutely forthcoming in case of the testator's sudden demise.
After the death of the testator the will should be taken to the court, unopened, and there filed with an affidavit as to the custody of it and death of the testator.
The judge having opened it, orders that publication be made according to law, that on a certain day it will be offered for proof, and causes notice to be given the heirs at law of the deceased and the executors named, if any, in the will.
At the time appointed the widow, if there is one, some of the heirs, and one or more of the executors, appear in court, with the witnesses to the will. To enable the will to be probated the witnesses must swear the testator executed it as and for his last will, and was then of a sound and disposing mind and memory. At this period any party interested in the estate may contest the will before the court.
Both husbands and wives are entitled to an interest in their joint estate, termed right of dower, which is not affected by wills, so that where it appears by the will that the provision is made by devise or legacy, in lieu of dower, the husband or wife must be called into court to accept or waive the provisions in the will.
If the judge thinks the will properly proved, he orders it recorded and issues letters of administration to the executors. A certified copy of the will and above order should be recorded in the registry of deeds of every county in which there is land devised by the will.
If the executors named do not wish to act, they file a disclaimer, and the judge then appoints an administrator with the will annexed. If an administrator dies before he has settled the estate, the court appoints his administrator to settle it, who is called administrator of estate yet to be settled. Persons administering on estate are by law required to give a bond with sureties in double the sworn value of the personal estate. This may be waived by the will.
The law vests the personal estate in the executor or administrators from the death of the testator, and the real estate in the heirs at law. These latter enter into possession at once, by descent or will, but their rights are subject to the widow's privilege of residing in her husband's home for forty days after his death, and all homestead laws.
In every State a widow has first, in preference to creditors, an allowance for the support of the family, or an award. Except in this respect all property is subject to the debts of the deceased.
In many respects the work of administrators appointed by the court, in case there is no will, is similar to that of executors when there is a will.
In case the deceased dies intestate (that is, leaving no will), then the widow, or the nearest heir to the estate, at once petitions the probate court for letters of administration to issue to some suitable person for its settlement, the following being the form of petition:
To the County Court of Kane county, in the State of Illinois:
The petition of Raymond Scott, the oldest surviving son of Willard J. Scott, late of said county, deceased, respectfully showeth: That on the eighteenth day of December, A. D. 1882, the said Willard J. Scott died, leaving goods, chattels, rights, credits and real estate in the county aforesaid; that, at the time of his decease, the said Willard J. Scott was a widower, his wife having died at St. Charles, in said county, as can be duly verified, on the tenth day of May, A. D. 1881; that, to the best of the knowledge and belief of your petitioner, no last will and testament was left by the said Willard J. Scott, deceased; that he has left, as heirs to his estate, two children, one (the undersigned) aged twenty-seven years, and a girl, Mary, now in the fourteenth year of her age; and that the deceased was, at and immediately prior to his death, a resident of the said county of Kane. Your petitioner, therefore, prays that letters of administration may be granted on the estate of the deceased, and that he may be appointed the administrator thereof. RAYMOND SCOTT
Dated this twenty-first day of December, A. D. 1882, at St. Charles, in said county of Kane, and State of Illinois.