U. S. Probate Records Class Handout

Handout courtesy of Jill Shoemaker, Riverton Family History Library Guide to probate records for genealogy or family history.

WHAT IS PROBATE?

 * Probate is the legal process through which an individual’s real estate (property) and personal estate (possessions) is distributed to his or her heirs, whether or not there is a will. Testate is the term used when a will existed in the settling of the estate.  Intestate is the term used when there was no will written and the court decides how the estate is to be distributed.

DID YOUR ANCESTOR GO THROUGH PROBATE?

 * Not everyone in the United States wrote a will or went through probate. Nearly 10% of the pre-1900 adult population made wills, usually males with property.  Before 1900, about 25% of estates were probated, even though no will had been written.


 * However, this percentage is higher for rural areas because that is where the land was owned. If your ancestor owned land, search for probate records to see how their land was distributed at their death.   If your ancestor owned land in more than one location, look for probate records in each of those locations.


 * There are not as many probate records for women, but if the woman was single, widowed, or divorced, it is more likely that she would have had property that would have gone through probate.


 * If there are no probate records for your direct ancestors, look at the probate records for your ancestor’s relatives, including siblings, children, parents, and especially unmarried aunts and uncles, as your ancestors may have been mentioned in their relative’s probate records. Since many family members were mentioned in each probate estate, the chances that some of your ancestors appeared in a probate record is fairly high, making probate records worth searching.

VALUE OF PROBATE RECORDS

 * The single most important value of probate records is the proof of relationships. In a will, people are identified as a wife, son, daughter, nephew, niece, brother, sister, etc.  If there is no will, the distribution is made by the court to the heirs who are usually family members.


 * Other helpful and interesting information that may be learned from probate files are: date and place of death, name of the spouse and other possible family members and relationships, location of the heirs, property ownership, and guardianship of minor children.


 * An inventory of your ancestor’s personal belongings would be made and debts would be paid out of the estate, revealing your ancestor’s economic standing.
 * Probate is under the jurisdiction of the state government who establish the probate laws for their state, but probate is administered at the county level, and it is important to know what laws and records are kept for the state you are researching. Some colonial records were kept by the town or colony.  Be sure to look at your state and their probate process at FamilySearch Wiki under [State] Probate Records.

THE PROBATE PROCESS

 * The probate process is essentially the same whether or not there was a will (with a will is called testate and without a will is called intestate). Either way the process may have required many years to complete.

Probate packet

 * Many documents were created during the probate process and each one may tell you something interesting about your ancestor. The probate documents were kept at the county courthouse in a probate packet that was sometimes called a probate estate case file.


 * Filing a Petition: A petition began the probate process by informing the probate court that an individual had died and that their estate should enter probate.  The petition was presented by an executor (male) or executrix (female) who was named in a will written by the deceased individual.  If the estate was intestate, an interested person (usually a widow, adult children, or creditor) filed a petition with the court to begin the probate process and a court date was set.  Petitions may (although not always) include the deceased person’s date and place of death or list all potential heirs and their current residence.  The petition proceedings were recorded in the probate minute book.


 * Publications: Throughout the probate process,notifications were published in the local newspaper, usually for three weeks, beginning with the petition. Other notices, such as an auction of the personal effects, sale of the land, or notice to the creditors, were also made public.  A law required that the publication notices be preserved and this notice became part of the probate packet.  Search for probate publications in online newspapers for the area you are researching at websites such as Chronicling America at http://chroniclingamerica.loc.gov/, MyHeritage.com, and NewspaperArchives.com (free at Family History Centers).

The will

 * Proving the Will: If there was a will, the witnesses to a will testified in court that they were present when the will was signed and that the deceased person was of sound mind when he signed the will and that he signed it of his own free will.  If anyone wished to contest the validity of the will, they presented their case at this time.  Once a will had been proved, it was copied into the court records with a statement indicating that it has been proved.  The original will was usually kept in the probate packet. For genealogists, the proving of the will can be used to determine an approximate date of death when no other records of death exist.


 * Will books are usually indexed, but the index to wills only includes the deceased person’s names and not the names of everyone mentioned in a will.


 * The will: A will is a valuable probate document, as it often gives names and relationships of the heirs or beneficiaries. The will may provide insight into the deceased’s personal life and may describe his property and belongings.
 * A will followed a certain pattern and included:
 * The individual’s name
 * The individual’s residence
 * The disposal of the soul and body
 * A charge to pay all just debts
 * Perhaps some specific and personal bequests
 * A residuary clause which explained how the remainder of the estate was to be distributed
 * The person writing the will then assigned an executor (male) or executrix (female)
 * The date the will was signed
 * The signature of the person writing the will
 * Witnesses then signed their names to the will.
 * Possibly the naming of a guardian for minor children
 * The current will may revoke all previous wills


 * A codicil is an addendum to a will and allows a testator (the person who writes the will) to make valid changes without having to rewrite the entire will.

Relationships in a will

 * When studying a will be sure to keep in mind that the people mentioned in the will may sometimes not be who they seem to be:
 * A wife may not be the mother of all the children in the will and maiden names of the female spouse are not mentioned.
 * Not all children may be included in the will—they may be deceased, or had already received their inheritance, or they may have been disowned. Children may not be listed in birth order and sons may be listed before daughters.
 * A cousin may mean a nephew or niece; a son-in-law could mean a stepson; a nephew could mean a grandson; or a brother or sister could mean a brother or sister in the Gospel.

Administration of an estate

 * Letters Testamentary/Letters of Administration: If the will was proved to be valid, Letters Testamentary were issued to the executor, but if the will was contested and proved invalid, the estate was considered intestate. If the estate was intestate (because the will was invalid or because there was no will) the court appointed an administrator (male) or administratrix (female) and Letters of Administration were issued.  The responsibility of the executor or the administrator was to satisfy the claims of the creditors, to care for the deceased person’s property, to determine the names and location of the beneficiaries, to investigate the validity of claims against the estate, and to carry out the instructions of the probate court.


 * Example:
 * Susanna Twigg, John Twigg, John North, & Jesse Cheney of Allegany County, Maryland, are firmly in the full sum of $2,000, dated 18th day of Oct. 1821. If Susanna Twigg & John Twigg shall well and truly perform the office of Executors of John Twigg of John then the above obligation shall be void.


 * Bond/Bondsmen An executor or administrator was required to post bond to ensure the proper completion of their duties. If the executor or administrator did not perform their duties properly, they would pay a fee to the court.  One or more people, sometimes family members, were required to co-sign the bond as sureties or bondsmen who agreed to pay the bond if the executor or administrator was unable to pay.

Inventory

 * Inventory: The value of an estate had to be determined before it could be settled, therefore the executor or administrator hired two or three impartial individuals to appraise the estate and list all personal belongings of the deceased person. The appraisal or inventory my also include the property and slaves of the deceased person. The inventory may have been copied into the will book and the original inventory was kept in the probate packet. Once the inventory was made, the items listed were auctioned off and it was noted who purchased the items.  Usually members of the family purchased many of the items listed in the inventory.


 * Example:
 * Susannah Twigg – Blanketing - $4.00
 * Susannah Twigg – 1 salt pan - $1.75
 * David Twig – 6 fat hogs - $20.00
 * Susannah Twigg – 1 skillet - $ .25
 * Amon Twigg – Lot of buck horns - $ .75
 * Abiud Twigg – 1 plow - $10.02
 * Susannah Twigg- 1 table - $ .75


 * Dower: In most states, widows had a right of one-third share of their deceased husband’s property. This is called a dower.  In probate the widow’s third is often mentioned and this is referring to the widow’s dower.  Widows had the right to refuse the inheritance given them in a will by their deceased husband in favor of their dower right (one third of the property).

Guardianship

 * Guardianship: A guardian (often a member of the family) was appointed for minor children who were under the age of 21 or for incompetent individuals. The guardian protected the interests of the minor or incompetent individual and was required to make a yearly accounting of just how they did that.


 * For minors under the age of fourteen, guardians were chosen by the court. For minors fourteen years old or older, a guardian was chosen by the minors themselves. Guardianship documents list the names of the minor children and their relationship to the deceased person. A guardian was released when a child became 21 years old, at which time the guardian would make a final account of their care of the minor.  Records of guardianship may have been kept separately from the other probate records.
 * Bills of Sale: During probate, it may have been necessary to sell parts of the estate in order to pay creditors, to provide support for the widow and minor children, or to distribute the property of an estate. This was done by public auction. The final bills of sale from these auctions were filed with the court. Bills of sale listed the names of individuals who purchased items at the auction. These individuals are often relatives, friends, and neighbors of the deceased person.


 * Annual or Yearly Accountings Administrators (and sometimes executors) were required to file an annual accounting of the proceedings of the estate showing payments made to creditors, payments received from those who owed the deceased person money, and payments to the heirs

Distributing the estate

 * Receipts: When an executor or administrator paid debts owed by the estate and collected money from those who owed the deceased person, receipts were issued which were filed with the annual accounting and final settlement. Among these will be receipts signed by the heirs as they receive money from the estate. Receipts give interesting personal information about the deceased person’s business and personal relationships. If the original receipt can be found in the probate packet, you may find your ancestor’s signature.
 * Example:
 * Received January 3rd 1848 of Thomas Twigg Admr of John M. Twigg dec’d., Twenty Dollars in full for one Cherry Coffin and Case. David Smith


 * Final Distribution or Final Settlement: When all the bills were paid and all the money owed to the deceased person collected, the executor or administrator filed a petition with the court and all the heirs were notified. The estate was then divided and distributed to the heirs—according to the will if there was one, or if there was no will, according to the laws of the state. In the settlement papers, heirs of the estate were listed (sometimes with their current location), each with the amount of property they received from the estate.


 * Release: As each heir received their portion of the estate, they would sign a receipt which showed their name and the amount of money or property they had received. The name of the executor or administrator would also appear on the release.  A guardian would be listed on the release of a minor child.  A release was filed among the original estate papers. At this time the estate was closed.


 * Heirs may have generated court cases throughout the probate process by contesting the will, suing the executor for failure to perform his duties, or requesting that the executor or administrator be replaced, etc. Often there would be a suit from one heir to the other heirs over the distribution of the land. Court cases may be found with the probate court or other types of county courts, such as the orphan’s court or the circuit court.

Your record of the will

 * When you find probate records about your ancestor, be sure to transcribe them completely so that you won’t have to keep reading the old handwriting over and over, and so you don’t miss any important clues or information about your family in the record. See the word list attached to this handout that will help when transcribing your ancestor’s probate records. Also, copy the source information and where you found the probate records for future reference.


 * As with other records where you find your ancestor, you will want to analyze the information you have found to see how it fits with what you know about the family. Look carefully at dates, locations, and relationships to make sure they all make sense.  Verify probate information with other records, such as obituaries, headstones, court, land, guardianship, and vital records.

WHERE TO FIND PROBATE RECORDS
When searching for probate records, remember there are many types of documents to find. You will want to search for more than just the will in order to learn all the information available about your ancestor in probate records. Probate records could be in more than one ledger, cabinet, packet, or office and will be a challenge to gather all together, but worth the effort.

Online Probate Indexes and Records

 * A quick way to find online probate records is to go to the state wiki page at FamilySearch.org. When you are at the state wiki page, click on the button that says “[State] Online Records,” and scroll down to where the probate records are listed. The links will take you to various websites, including FamilySearch.org where you may be directed to “Image Only Historical Records.” Image Only Historical Records have not been indexed, but are usually arranged in a way that is easy to browse.  Also look for county and state archive records in the “Image Only Historical Records” at FamilySearch.org for unindexed, online probate records.


 * Do a Google search to find State Archives for where you are searching who may have put some of their probate records online and to learn what resources they have. You may also want to do a Google search for probate records of the county you want to search.


 * Ancestry also has some online probate records for selected counties. Go to Ancestry.com and click on “Search All Collections” then scroll down to the U.S. Map and click on the state where you are searching for probate records.  On the next page, look for probate records under “Tax, Criminal, Land & Wills.”


 * USGenWeb.org lists many types of records for counties of the states of the United States. It is always worth checking for your county and state.  Also check the USGenWeb Archives at usgwarchives.net.

Probate Records on Microfilm and in Books

 * Many county probate records have been microfilmed by the Family History Library, but may not have been digitized yet. Search the catalog for the county where your ancestor died to find probate records on microfilm or in books.

County courthouses

 * Most original probate books and probate packets are kept at the county courthouse where the estate was settled.Sometimes the probate records have been removed to a central repository, such as the state archives.


 * It may be possible to pay for copies of probate information to be sent to you from the county courthouse, but it may be necessary to hire a local on-site researcher for a fee. Or perhaps a local genealogy society may be willing to copy the records for a small donation.  Of course, planning a family history trip to the county courthouse would allow you to do your own searching for probate records.

SUMMARY
Probate records are invaluable in learning more about your ancestor and their family. The probate process created many different documents, each allowing you to know your ancestor and other family members in a different way. Don’t overlook these records as you build the story of your United States ancestor.

WILL AND PROBATE TERMS
Abstract: An abstract is a summary that contains only the pertinent points of a longer text.

Accounts: Accounts are the reports of administrators, executors, guardians, trustees, and conservators of transactions for the estate.

Administration of an Estate: Any proceeding relating to the settlement of a decedent’s estate, whether testate or intestate.

Administrator (-trix): The person appointed by the court to manage the decedent’s estate during administration when the decedent left no Will (died intestate). Adult: A person who has attained the age of 18 years.

Affidavit: An affidavit is a legal written statement made under oath.

Appraisal: The appraisal is an itemized valuation of real or personal property.

Appraiser: An impartial person who estimates the value of personal or real property of the estate.

Attest: To attest is to witness, offer testimony, or to certify that a copy is genuine.

Beneficiary: A beneficiary is one who will receive benefit from the estate.

Bequeath: The act of assigning personal property in a will.

Bequest: A bequest is the personal property assigned in a will.

Bond: The court required the administrator (and sometimes the executor, guardian, appraiser, and trustee) to post a bond to ensure that he would complete his duties. A fee was to be paid if duties weren't performed. One or more persons were required to co-sign the bond as "sureties."

Bondsman: A bondsman is a person who pledges a sum of money as bond in another's behalf.

Case file: The case file is all of the various papers that have been created throughout the probate process. These are bound together and archived by case number.

Codicil: An addition to a Will.

Contest: To contest a will means to dispute the will.

Decedent: A deceased person, usually the person whose estate is subject to administration.

Descendants: Children, grandchildren, great-grandchildren. See “Issue.”

Devise: Devise is to transfer real property through a will.

Devisee:A devisee is a person receiving real property through a will.

Docket: A docket is a list or schedule of cases to be presented before the court.

Dower rights: The dower rights are the rights that a non-owner spouse has in the real property.

Estate: All real and personal property left by a decedent in which he or she had a right or interest.

Executor/Executrix: The person or party designated in a Will to act as the personal representative of a decedent’s estate.

Final account: The final account is the final accounting of the estate and how it was distributed. Guardian: A person appointed by the court to supervise over the financial affairs of one not legally competent to manage them by himself, such as a minor or disabled or incompetent person.

Heir: An heir is a person who inherits property upon the death of the owner.

Incompetent: Any person who is incapable of managing his person or estate.

Intestate: Usually refers to a decedent who died without leaving a valid Will; partial intestacy occurs when the Will does not dispose of all of the estate.

Inventory: A listing of all the decedent’s assets. An inventory is filed with the court by the personal representative in a court supervised estate.

Issue: Issue refers to offspring, biological children, or legitimate descendants.

Kindred: Those related by blood, as distinguished from those related only by marriage.

Last Will and Testament: A document that directs the disposition of the testator’s property after death and which is executed in accordance with certain statutory requirements.

Legacy: A legacy is a gift (bequest) of real or personal property by way of a will.

Legatee: The person to whom personal property is given by Will. Letters of Administration: Letters of Administration refers to the formal document from the court granting authority to handle the affairs of the estate.

Letters Testamentary: Letters testamentary refers to the document approving the appointment of an executor and authorizing that person to administer the estate.

Majority: When a person reaches majority, he or she is of full legal age.

Maternal: Pertaining to the mother’s side of the family.

Minors: Persons of the age of 18 are considered of legal age for all purposes.

Minutes: Minutes are the notes made of the probate court proceedings.

Next of Kin: An individual’s nearest blood relatives. Nuncupative will: A nuncupative will is spoken in the presence of witnesses.

Paternal: Pertaining to the father’s side of the family.

Personal Property: All assets other than land and those things permanently affixed to the land. Petition: A petition is an application to a court requesting the right to settle an estate.

Posthumous Child: A child born after the death of his or her father.

Probate: The process of administration of a decedent’s estate under the supervision of the court.

Probate estate papers: All of the various papers that have been created throughout the probate process are bound together and archived by case number.

Probate fees: Probate fees refer to the compensation paid to the attorney in a probate case.

Probate packet: Probate packet is the case files placed together in an envelope or tied together with a string.

Prove: To prove a will means the evidentiary process validating that will.

Publications: Notices are published so that creditors, and others with an interest in the estate, have an opportunity to collect debts or contact the legal representatives.

Real Property: Land and anything permanently attached to it. Register: A register is a bound book in which official matters are recorded by the court clerk.

Relict: A relict is a widow or widower.

Representative: Includes executor, administrator, and guardian. See “Personal Representative.”

Revoke: To cancel or make ineffective.

Settlements: Settlements are the final accounting of the estate and how it was distributed. (See final account.)

Siblings: An individual’s relatives or kinsmen; normally used to mean natural brothers and sisters.

Spouse: A married person; husband or wife.

Surety: A surety is a person who agrees to be liable for another's debts and obligations in case of default.

Testament: The document in which the testator distributes (bequeaths) personal property. This term is often dropped from "last will and testament."

Testamentary: Testamentary items or matters mean that they pertain to a will.

Testate: Leaving a valid Will at death.

Testator(trix): The testator (male) or testatrix (female) is the person making the will or testament.

Transcript: A transcript is an exact handwritten, typed, or printed copy of a document or set of records.

Valuation: The process of arriving at the market value of the assets in the estate of a decedent through the use of appraisers and other objective proof. See “Appraisal.”

Will: A document that directs the disposition of the testator’s property after death.

Witness to a Will: One who certifies that he or she witnessed the making of a Will by a testator.