Probate Records

PROBATE RECORDS
by CelticWolf

This document is a basic guide to researching probate records. Comments are welcome.

It is best to visit courthouses in person, because only you can trace all possible variations on your family name and only you can follow information contained in one record and trace the name through other records. If you write to a courthouse, expect them to do a limited search for the exact record you require, sometimes requiring a search fee. In most cases, however, the search is free but you will be required to pay for copies of records. Always enclose a SASE (self addressed stamped envelope) with any request.

In order to find out the location of a courthouse and what records they have, consult George B. Everton's The Handy Book for Genealogists (Logan, UT: Everton Publishers, Inc. 1991) or Ancestry's Red Book: American State, County & Town Sources (1st Edition, revised; Salt Lake City: Ancestry, Inc., 1991), Alice Eichholz, ed. These books will tell you the location of records (county clerk, clerk of court, probate judge, etc.), the time frame of the records, when the county was formed, and the address of the courthouse.


PROBATE RECORDS

Probate records are often key in solving stubborn genealogical problems, because they often include personal information of the highest quality.

An estate is "testate" when a legal will is in existence and "intestate" when there is no will or the will is not legal. The court must approve any will before it can be probated, and if it does not gain such approval, it becomes intestate. The maker of the will usually names one or more executors to carry out its provisions, but if one is not named, or the executor died before the testator did, then the court appoints an administrator. In intestate estates, the court appoints an administrator, whose duties are similar to the executor, and distribution is made according to local law. If the executor refuses to assume responsibility, a "renunciation" is made, and an administrator is appointed by the court.

The usual procedure for administration of probate is this: After a person possessed of estate of any size dies, an interested party petitions the court to probate the estate. This person may be a friend of the deceased, the surviving spouse, other relatives, a creditor, or a public official. The petition usually contains the name of the deceased, date and place of his death, name and place of residence of the surviving spouse, and the names and residences of all known heirs.

The petition is usually filed among related probate papers. Such records are referred to as the "files" or "packets" and contain all papers relating to the estate. Some files have been destroyed or moved to state archives, but most remain in their respective county offices.

After the petition for probate has been approved, further probating procedures take place. Courts generally require that the administrator be bonded, but in a few testate cases, the testator specifically indicates that the executor may act without a bond.

One of the first acts of the executor or administrator is to make a complete inventory of the property of the deceased and have it appraised prior to any settlements. The inventory rarely gives any valuable genealogical data, but it does give some idea of a person's financial status. The "inventory" lists all property, real or personal, and the "appraisal" lists its value. When sales are made, the names of the buyers should be examined closely, because quite often they are family members and close relatives. Some sales documents state the relationship.

On occasion, the court granted an allowance to the widow or minor children while the case was in probate, and documents related to this may be an excellent genealogical source. Allowance may be in cash or in kind, and records vary in detail.

When minor heirs exist, guardianship and apprentice records may be initiated, and these records can provide excellent data for the genealogist. The court usually appointed a guardian for minors under fourteen years of age, but those older than fourteen were sometimes allowed to choose their own guardian.

After certain administrative actions have been completed, which may be over a period of months or even years, property and monies belonging to the estate are distributed to heirs, devisees, and legatees, according to the will or, in intestate cases, state and local laws. Documents relating to the distribution of an estate are often the most helpful in determining kinship.

During the probate process, the executor or administrator must keep an accounting of his actions and report to the court concerning his work. Letters may be received, depositions taken, affidavits signed, and other papers initiated which might help you solve a genealogical problem. Be sure to carefully read every document in probate files for possible clues.

Most probate offices have general indexes to their records which refer to original will books and estate papers. Some do not, so careful investigation of each volume's index is warranted. Probate jurisdiction has varied from state to state both in responsibility and the governmental level at which probating was hired. Some places in New England, such as Connecticut and Vermont, probated on a probate district level, comprised of one or more towns. Massachusetts and Maine functioned on a county level, while New Hampshire functioned on a provincial level before 1772 but on a county level after. Prior to the formation of the United States, New York County handled all probate matters for the state of New York, and it wasn't until after 1780 that the probate burden was shifted to the individual counties. During colonial times, probate matters were handled by the General Court, the Particular Court, or some other court, but many colonies, including Pennsylvania, set up special Probate Courts or Orphans Courts. Some counties today have such matters handled by the Probate Judge, the Clerk of the Circuit Court, or the County Clerk. In all cases, I recommend a careful reading of The Red Book or The Handy Book to find probate records.

As you examine probate records, you will learn many things about your ancestors and their belongings, some quite humorous. For example, one of my ancestors died with $12, a pair of sheep shears, and $100 in debts to his name. Another left her family a cow and some household items. One ancestor even left his son land with the condition that the son pay for it!

But be careful. In some midwestern states in the 1800's, upon the death of an individual, his property was simply handed over to his spouse without any formal proceedings. I discovered this on several occasions while tracing my own family. The best thing you can do in such a case is check the deed books for transfers of property, which will be covered more fully in a future document.

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