An Introduction to Legal Genealogy
When most people think about genealogy they’re not necessarily thinking about the law. They envision names, dates, census records, maybe some photographs, and copies of ubiquitous small obelisks. What may be a surprise to some is that most genealogists who dabble in legal records actually don’t worry about the law. Occasionally, a successful attorney will become interested in his or her own family history. Or a local historian will be studying a particular family and want to branch out from the same old information available in most library collections. Then there are the genealogical societies which publish their own periodicals intended for both beginners and advanced hobbyists. Each of these is focusing on general genealogy.
But a legal genealogist spends his or her day in a different world: probate, land, succession, division of property, conveyances, divorces, taxes, guardianships, marriage bonds, naturalizations, and more. All of the documents best suited to genealogists are tucked inside the bowels of these records. Who lived where. Who lived with whom. Who was born, and when. Who married when. Who died. How many children did the couple have, and how many survived childhood? What illnesses befell the members of the family?
Specialized skills are required for a good legal genealogist . Thorough knowledge of the "twelve elements of a legal genealogy" provides both the ability to read the records with confidence, and leads you to the correct records to research. There is an artist’s ability required to interpret text riddles which often harbor double meanings. Beneath legalese and arcane phraseology, what is really being said is never quite what the casual observer may believe. Creativity can go a long way to dislodging hidden information.
Most importantly, a legal genealogist knows the law. When did the laws change? What were the requirements for [fill in the blank]? What did that particular law mean? Sometimes a handful of laws can work together to shed light on what really happened, when only a single law would fit the historical narrative.
A legal genealogist understands the law in the context of the time period and location being examined. Legal genealogists can help you untangle an orphan dispute, a poor house residency requirement, or a contested estate.
There is the equation which suggests that genealogists are rare birdwatchers who like to collect information, while legal genealogists write bestsellers in college textbooks. We have learned that these two seemingly disparate activities can harmoniously squeeze into one another. When you need special understanding of the law, the person you want on your side is a legal genealogist.
When It Is Advisable to Retain a Legal Genealogist
Legal genealogists are employed in a number of situations. An obvious case for hiring a legal genealogist would be in the settlement of an estate. From the moment of death, a number of circumstances arise and need to be considered. Has a will been prepared? Has it been recorded? Are there other deeds or documents that need to be filed? Who is entitled to inherit from the decedent? Are there missing heirs to be located and identified? These and many other questions are essential to the settlement of the estate.
Another situation where a legal genealogist may be needed is when there has been an unresolved tract of land that has been owned by family for generations and there is a question as to title. Who holds the title? How did he or she come to own the property? Has there been an undocumented land transaction? In land disputes the forensic skills of a legal genealogist are frequently called into play.
Has a court appointed a trustee for a son, daughter or grandchild? Who do they contact to name an appropriate guardian? Or consider the case of a recent immigrant who cannot get a Social Security Number. The individual was born on a date before there was a computer system in the family’s home country. Where do they apply for a number? Who can testify to the individual’s age? In this and countless other situations it often takes the combined talents of other professionals to resolve an issue and a legal genealogist is frequently a key part of that effort.
Qualifications and Skills of a Legal Genealogist
The qualifications for practicing as a legal genealogist can vary. The American Society of Genealogists (ASG), a scholarly society of scholars whose members have proven publication in juried scholarly venues, requires a non-refundable application fee, proof of line(s) of descent from particular proven ancestors and a successful publication. Successful and currently-serving members of the Board for Certification of Genealogists (BCG) must sit one or more BCG exams and be approved by the BCG as meeting its rigorous standards (note that the BCG will vote to allow applicants to forego testing on a case-by-case basis depending on the applicants’ accomplishments, so the standards are not inflexible). The Association of Professional Genealogists (APG) also has a membership process, but requires less experience and does not have an achievements-based, credentialing approach. The Association of Professional Genealogists and the Board for Certification of Genealogists both have a code of ethics, which serves as a guideline for their members, though neither provides licensing of any kind. There are other groups within the United States that any researcher can apply to join and lists of professional genealogists published by publishers and websites.
Those who specialize in legal genealogy possess substantial experience in industry-specific topics such as trust and estates, as well as working relationships with probate lawyers. Since this work is almost inevitably trans-jurisdictional and a multi-states project, it is also helpful for a legal genealogist to have familiarity with the law in more than one state. For example, a legal genealogist who is not familiar with the law in New York (the place where many estates open) may be of limited use in a case that commences there. Familiarity with statutes is also important and certain areas of the law are especially helpful: trust and estates, family law, constitutional law (or at least First Amendment law), as well as local rules, such as discovery rules and the rules of evidence.
There are of course many genealogists with no training in the law. They may have incredibly strong skills within the genealogical profession, but a limited understanding of the practice of law. Like all specialists, those who focus on legal genealogy, bring a set of specialized skills that may, in the appropriate cases, be invaluable.
Research Methods Used by Legal Genealogists
Legal genealogists employ various research techniques to trace lineage, establish property rights, or identify heirs. Reviewing legal documents is a primary and personal favorite among our legal genealogist researchers. The review of land records, court filings, and probates require lawyer-like deductive reasoning through the evaluation of the evidence as presented. We apply the methodology learned while pursuing our legal degrees. Legal genealogists may examine the context in which the evidence was created both from a technical standpoint as well as a social one. We also enjoy studying the content of the original documents as well as analyzing them . We group records and divide them into several categories. A few record sets we analyze include: Census Records, Property Records, Lawyer and Court Records, Military Records. As probate practitioners, we understand how to dissect inventories, which were often prepared by forensic accountants. As genealogy detectives, we scrutinize the balance sheets for evidence of sufficiency or insufficiency. As legal genealogists, we employ the same tools and document analysis skills used by lawyers. After our analysis, we organize the information logically and create a family tree based upon genealogical standards.
Difficulty Encountered by Legal Genealogists
There are a number of challenges that legal genealogists may face including the restriction of access to historic records and information, conflicting data and even a seemingly never-ending chain of family historical mysteries. Being a legal genealogist means that you will no doubt find yourself dealing with a lot of missing pieces when it comes to discovering the details of the past early in your search. Those long-lost documents, personal letters, photos and other information can be difficult to locate and extremely time-consuming. Accessing the records that you need are perhaps the most difficult to obtain. Many historic records may not even be digitized yet, which means you will have to rely on what you can find no matter how thin the research materials. Regardless of what the case may be, legal genealogist will often times, have to look elsewhere for the answers. Getting the needed information from archives or fellow genealogists will prove to be some of the biggest sources of information to help you complete the puzzle.
Advancements in Technology Affecting Legal Genealogy
Technology has had a considerable impact on many diverse fields of study, including, of course, genealogy. As a legal genealogist, I appreciate how technology in the forms of DNA testing and digital archives have enhanced my research process as well as offered me new avenues of investigation to pursue.
DNA testing is a very useful tool for the legal genealogist, as it can help to support (or contradict) a person’s family tree research as well as identify new individuals who can be included as descendants of the individual named in the document being researched . Even though yDNA testing can be used to establish the progenitors of direct male descendants, autosomal DNA testing, which includes both yDNA and mtDNA, can be used to establish the progenitors of all descendants, regardless of gender.
Digitization of original documents can have a positive as well as negative impact on legal genealogist, depending upon which side of the research project they are on—plaintiff or defendant. For plaintiff, seeing who inherited what from the testator is essential to validating claims for property, while for defendant, this information is essential in disproving claims for property in order to invalidate claims for adverse possession.