Historically, since the first permanent settlement, there has never been a time in North America when people did not make wills or when the estates of those who failed to do so were not handled by a court appointed for that purpose to ensure that the righful heirs–the legal heirs–became the heirs in fact.
Val D. Greenwood, The Researcher’s Guide to American Genealogy, 4th edition (Baltimore: Genealogical Publishing Company, 2017), 399.
Probate records are the records created as the property of a deceased person is distributed to his or her heirs. Probate records are genealogically valuable for a few reasons. First, they predate many other record types and might be one of the only records that can be found for an individual. Second, they often state the names of family members and their relationships. Third, although a person’s death date is often not stated in the records, the time the probate was granted gives an approximate date of death for the decedent. In addition, witnesses, executors, and administrators of the estates of the deceased are often family members and friends. Studying these individuals can help us learn more about our research subjects.
Although probate records are valuable, it is important to remember that probate records don’t exist for every individual. In fact, it is estimated that “prior to 1900, only about 10% of person created a will and only about 25% of estates were probated, regardless of whether or not there was a will.” (U.S. Probate Records Class Handout, FamilySearch).
Understanding the probate process helps genealogists learn what types of records would have been created as our ancestors’ estates were settled after their deaths. The most basic thing to understand about the probate process is that when a person died intestate that meant he or she did not leave a will. Testate meant that the decedent left a will.
The probate process was similar whether there was a will or not:
- When someone died, a petition was filed by the executor or executrix if there was a will, and by the widow, other family member, or interested party if the decedent died intestate. This petition let the probate court know that the person had died and that there estate should enter probate.
- If the person left a will, the witnesses testified in court that they saw the decedent was of a sound mind when he or she wrote and signed the will. If nobody appeared to contest the will, the will was then considered valid, or proved. If it was not proved valid the probate matter was considered an intestate case.
- The executor of a will was then granted Letters Testamentary that would allow him to proceed with the distribution of the estate. If there was no will, the court appointed an administrator and issued Letters of Administration.
- The executor or administrator hired two or three unbiased individuals to make an appraisal of the estate. The appraisal included a list of all personal belonging of the decedent. Items were then sold, often to family members.
- The executor or administrator paid debts owed by the estate and collected money from those who owed the decedent.
- When all bills were paid and moneys collected, the estate was then distributed to the heirs. This was done according to the will if there was one, and if not, according to the laws of the state.
- As heirs received their portion of the estate, they signed a release that stated their name and the amount of property they received.
- When a decedent left minor children (under the age of 21) behind, a guardian was appointed to protect the interests of the child.
The records resulting from the probate process were usually bundled into a probate packet that was kept on file at the county courthouse. They have sometimes been moved to central repositories. Once a will was proved, it was copied into the court records along with a statement noting that it had been proved. The original will was kept with the probate packet.
Conclusion
Probate records are a key source of genealogically significant information for many of our ancestors. Understanding the probate process provides knowledge about what types of records might have been created as your ancestor’s estate was settled. Armed with this knowledge, you can begin to seek out these records and benefit from the information contained therein. To learn more about where to find probate records, see the resources listed below.
Great resources to help you learn more about probate records:
For a list of basic probate terms, see Glossary of United States Probate Terms in the FamilySearch Research Wiki.
Probate Records Cheat Sheet from FamilyLocket.
Chapter 16, “Understanding Probate Records and Legal Terminology,” in The Researcher’s Guide to American Genealogy by Val D. Greenwood.
Finding Probate Records
Visit the United States Probate Records page on the FamilySearch Research Wiki for links to individual states. Each link will provide information on record availability, repositories, and available online collections.
Probate and Wills by Kenneth R. Marks at The Ancestor Hunt. Includes links to lists of free probate records from every state.
