The Mad Genealogist

Despite their usefulness, probate records are filled with traps for the unwary genealogist. The first pitfall is contemporary law. Probate is a function of state authority, with only one federal prohibition: primogeniture, or passing a landed estate automatically to the eldest son, is forbidden; by 1811, all former colonies had revoked it by statute. Because probate is a state function, probate procedures vary from state to state and have changed over time.

It is useful to know what laws were in effect in a state at the time an ancestor lived there. Tracing the history of a law is not difficult. Most law libraries are open for public use. A call before you go can verify public access, hours of operation, availability of copy machines, and fees (if any).

In addition to the pitfalls presented by ignorance of legal language and past laws, another problem may arise if a researcher concentrates only on the case files or probate packet. You should not overlook other records leading to probate which appear among the records of other courts. For example, the Court of Common Pleas in Pennsylvania was responsible for hearing evidence of incompetency and determining the status of such individuals.

Also available at law libraries are the state law codes. To locate a law effective when you ancestor was alive, check the current law code (dower rights, for instance, or age when a minor could make a will). Get the reference to the next earliest code when the law was changed or modified and work backward in time until you find the law as it was.

Although this process seems tedious, it is sometimes necessary and nearly always illuminating. The law determines the specifics in much of the probate process. Court officials do not explain what they are doing or their reasons for acting in a certain way in the records. They expect you to know that already. The law also determined the ages at which your ancestors could transact legal business.

When courthouse fires have occurred, these other court documents may have survived if they were filed in other buildings or kept among the personal papers of justices or court officials. Some of these records are used legally in lieu of probate processes.

Another problem is that New England demographic research comparing wills and probate inventories with tax rolls and other inhabitants’ lists shows that less than fifty percent of the male population was included among inventories and less than forty percent left wills. In some areas, the percentage was below twenty-five percent. Less than ten percent of the women had either wills or inventories. While some people had little or no property to inventory, a substantial number seem to have deliberately made provision for their estates to pass to their heirs without probate.

Probate records are of uneven value when it comes to establishing specific death dates. Some probate records include the date of death. Some indexes include the date of death, while the probate record does not. Where the death date is not given, the date of the acknowledgment of witnesses is usually the first record made in the probate process, followed by admission of the will to probate. In some jurisdictions, however, the witnesses acknowledged their signatures and certified the mental soundness of the testator at the time the will was drafted—not after the person’s death. To avoid these problems, the safest date to use is the date the will was recorded—between thirty and ninety days after the death of the testator.

Relationships between legatees and testator were seldom defined. As a consequence, brothers and nephews are mistaken for sons, sisters-in-law and daughters-in-law appear as unmarried daughters, and daughters with unknown married names may be unidentifiable. The legatees sometimes are mentioned by first names only. “In-law” was often a synonym for “step” and adopted kin. Because of these ambiguities, it is wise to corroborate all relationships with other sources.

Probate records can provide valuable leads to those relationships. Here are some clues:

1. In states that allowed the eldest son a double portion of his father’s estate, an estate with seven shares had six heirs, not seven.
2. Daughters unmarried at the time a will was drafted may have been married by the time it was probated. The will and subsequent documents will contain different names. Watch given names carefully and always check all males listed in the final settlement, especially if they are not listed in the will as potential sons-in-law.
3. Statements such as “my daughters Mary and Martha shall have five shillings each with what I have already given them” and “my daughter Grace shall have £30 to make her equal with her sisters” imply that some daughters were married and had already received their portions.
4. Special terminology may reveal relationships: “a femme sole” is an unmarried woman; “coverture” refers to a married woman.
5. Where two executors are named in a will, one is usually the relative of the testator and the other a relative of the spouse. Both sides of the family were represented to safeguard the interests of all parties and to keep peace.
6. Bondsmen are usually relatives who are willing to stand the risks and who have some leverage over the persons they guarantee. If the wife is executrix, the bondsmen will usually be her relatives. Where her maiden surname is unknown, look carefully at the names of the bondsmen.
7. Guardians are usually relatives who have no potential interest in the estate. With some careful calculations, you can decide who these would be and perhaps identify missing surnames.
8. When the court has to determine who inherits, unless extenuating circumstances dictate otherwise, the estate is usually awarded to heirs of the whole blood (related by blood to both sides of the family) rather than an heir of the half blood (related to one side only). In this way, the property is more likely to stay in the family.
9. Second marriages of widows are most frequently documented among probate and guardianship records, as their new husbands assume responsibilities of the estate. This makes probate records especially valuable.

Sometimes, family members are omitted from a will because they are otherwise provided for. A man can settle a jointure on his wife at the beginning of the marriage in lieu of dower rights or subsequent claims against the estate. During colonial times, when the law of primogeniture was in effect, the eldest son was frequently not mentioned in the will, for the real property descended automatically to him if the estate was entailed. Most American men also owned other lands in fee simple which could be described and left to younger sons.

As daughters married, they were customarily given their portions in cash, land, household furnishings, food, horses, slaves, etc. Sons were given their property when they reached majority or planned to marry. A family account book recorded the property conveyed to each child. If, when the father’s estate was later settled, a child contested the settlement, this account showed what each marriage portion was. Thus, children who had received their shares were frequently omitted from the will.