Probate records include a variety of documents created to support court proceedings in the settlement of an individuals’ estates. The number and type of probate records created may vary over time in different jurisdictions and due to the amount of real and personal property involved. The various documents generated in the probate process are rarely filed together.

Probate records may consist of one or more of the following court-generated documents: will and associated records, letters testamentary, orders, appointment(s) of administrator(s) or executor(s), letters of administration, bonds, inventory, estate sale(s), guardianship, claims, list of heirs, petitions, accounts, releases, claims, dower apportionments, widow’s one-year support, commissioners’ reports, receipts, judgments, and division of property. Probate records are among the most important of genealogical records because they can identify families and provide proof of relationships— information that is absent or only implied in most other original records. Published probate records frequently provide faster access. These printed materials can provide pertinent genealogical information and can serve as finding aids to original documents.

Records associated with probate proceedings and estate settlements frequently furnish the details needed to document a lineage, and they often name family members and state the testator’s (person making the will) relationship to each. Therefore, wills and accompanying probate records, whether original or published, are valuable tools for the genealogist.

Probate records can contain an abundance of genealogical data or can be disappointing depending on a number of circumstances: whether the testator included many or few details about his property and relatives, whether the estate was contested by the heirs, whether there was a sizeable estate, whether a person who died without a will had debts requiring the sale of his property, and whether or not the records generated can be found.

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The Probate Process

The word probate refers to the “action or process of proving before a competent judicial officer or tribunal that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine,” but the commonly accepted form of the word includes “the right or jurisdiction of hearing and determining questions or issues arising in matters concerning the probate of wills or the administration of decedents’ estates,” according to Webster’s Third New International Dictionary.

When there is a will, the case is termed testate; when there is no will or a will is not accepted by the court, the case is termed intestate. The person making a will is the testator, and those receiving any designated portion of the estate are the legatees or devisees. Generally, a will denotes the distribution of real estate, while a testament suggests the distribution of personal property. Because this discussion concerns the law, there are, of course, numerous other important terms unique to both testate and intestate procedures. A brief discussion of some key terms follows.

Terms Used in Testate Procedures

While there are many terms unique to the probate process, the following have direct bearing on testate records.

Administrator. If the executor appointed in a will refuses to serve or dies before the probate action is complete, the court appoints an administrator, and the record of appointment is appended to the will. It is the administrator’s duty to settle the estate and distribute the assets according to the laws governing inheritance in the state at the time.

Caveat - A caveat is a legal notice filed by another interested party with a proper legal authority, often when contesting a will, directing the court to stop action until the interested party is heard. Caveats may be included in any one of a number of printed probate records.

Codicil - Codicils are additions attached to a will that change the will’s distribution of property. A codicil may be added after the birth, marriage, or death of a child and thus provide an approximate date for those events. However, some codicils reflect changes concerning the child or widow’s allotment. The codicil normally has a different date than the will and also requires two or more witnesses.

Executor - The testator normally appoints, in the will, an individual (usually a family member or close friend) as an executor to act in his behalf.

Nuncupative - A nuncupative will is a verbal statement made by the testator and reported to the court by witnesses relating the deceased’s wishes as to the disposition of real and/or personal property. If the nuncupative will is accepted by the court, it is processed in the same manner as a drawn or written will.

Will - The most commonly abstracted and published records are wills. These are documents written by the testator (or his agent) that direct how his estate will be distributed after his death. They are signed by the testator and witnesses. If the testator was illiterate or too ill to write his name, the signature may be a mark.

Witness - Two or more witnesses (the number varies according to the laws of the various states) are usually required to witness a will, whether written or nuncupative. These witnesses are required to verify the will by deposition and to aver to its validity and to the competence of the testator. Witnesses are often relatives or close friends of the family, and their names should always be noted.

Additional Terms Used in Intestate Procedures

Intestate cases follow much the same format as proceedings for testate actions. If a person did not leave a will (which was the case with the majority of our ancestors), intestate procedures took over. Many people mistakenly believe that, because their family was not wealthy, probate records were not produced. Although that is occasionally true, the death of an individual who owed money often resulted in even more paperwork, and thus greater genealogical clues, than some wills.

The evaluation of intestate probate items can reveal many genealogical clues, such as places of residence, and names of individuals, such as children, widows, siblings, friends, business associates, debtors, and other relatives who might qualify as (or who hoped to qualify as) heirs. Occasionally, items are mentioned which might link one family to another, such as a family heirloom or a slave. Clues involving the individual’s profession or rank in the community might help to distinguish between two individuals of the same name who lived during the same period.

Administrator - The court appoints an administrator who may be required to post bond and submit letters of administration. The duties of an administrator and an executor are essentially the same: to settle the estate. A few administrations and related probate records have been published as separate collections. Sometimes administration records are published with court record abstracts. Frequently they are included in such published works when the publication is an index or finding aid to probate records for a particular jurisdiction.

Inventory - Normally, the deceased’s estate had to be inventoried; real estate and personal assets and obligations were enumerated in an inventory. Estate inventories usually reveal clues and provide data for the genealogist. Original inventories and their published abstracts vary in length and particulars. Published inventory data taken from court records rarely includes the entire accounting of property. In those that do, a mention of notes and monies which the deceased owed to others may be included. These entries provide clues for the genealogist to follow.

Other tidbits can be gleaned from inventories. A man’s occupation may be identified through a listing of sundry tools, such as those for a carpenter, blacksmith, or surveyor; the approximate birth date of a child may be surmised by an entry for a debt to a midwife; property in other locations may be enumerated. Certainly, inventories with extensive listings of household, real estate, and personal property indicate a family’s or individual’s financial circumstances.

Accounts, Petitions, Renunciations - Accounts were returned to the court by the administrator(s) or executor(s) at intervals. These depict the expenses incurred as the estate was being administered and settled. Accounts usually show all paid debts, credits collected, and services rendered during the period between reporting. Accounts may also record the names of heirs who died and female heirs who married. The final accounting normally lists receipts and disbursements and may include the last division of the estate with a list of heirs, their respective portions, and places of residence. Petitions to the court were made by individuals seeking action relating to the estate. Letters of renunciation are those in which a person declined the responsibilities of administering the estate.

Dower Rights - A very simple definition of common law dower is: a widow’s right to a life interest in one-third of the real property belonging to her deceased husband. However, there were differences in dower in various areas of the United States during different time periods. Proceedings for dower rights normally include the widow’s given name and that of her deceased husband; their relationship is stated in the record. The first entry for a dower apportionment enables the death date of the deceased to be estimated. Prenuptial agreements and marriage settlements are sometimes recorded in court minutes, providing worthwhile clues to family relationships. Dower allotments may be found printed along with miscellaneous court records or land and property record abstracts, as well as in periodical probate publications.

Inheritance laws were constantly changing. For example, in 1682, when one group of English colonists first arrived, the law provided for the widow to receive one-third of the estate, for the children to divide equally another third, and the final third to be taken care of by a will. If the wife was also deceased, two-thirds went to the children. This custom also existed in London. One year later (1683) a law giving the eldest son a double portion was passed. Even without a will, the relationships of people to the deceased can be determined if you are familiar with the inheritance laws of the time period when the death occurred.

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The Probate Process

There is much diversity in the publication and content of published probate records. Some probate records appear in book form, some in periodicals, and others in collected works. Even within a single publication the content and focus varies considerably. Printed probate records may concentrate on a period, a location, or a specific kind of probate record. Some printed works deal only with wills; others include administrations, and still others incorporate guardianships, dower rights, inventories, and related records. Some cover ecclesiastical areas, such as parishes, rather than governmental jurisdictions, such as counties. Some deal with the colonial period only, while others bridge long time spans.

The details included also differ from one publication to another; some offer extensive detail, while others provide little more than a name and reference. One compilation may merely list surnames and dates while another provides extracts or detailed abstracts. One may list only a date for each court-related action, while another cites dates, volume, and pages for complete citations. Some show more than one set of pagination references, with or without explanation. Some contain every-name indexes, while others are arranged in alphabetical order. Some may be organized only by location within a greater region or state, while others are arranged chronologically. Many contain two or more aspects of these organizational schemes.

The majority of published probate records are abstracts or indexes of originals in a particular jurisdiction. Very few published volumes include complete transcriptions of estate documents. As would be expected, published indexes are helpful guides to locating appropriate records.

Published probate records fall into three general categories: abstracts, extracts, and transcriptions. There are also printed probate indexes and research methodology sources.

Abstracts - Abstracts are abbreviated or abridged summaries of the original documents in which only data considered to be essential is copied. These usually contain brief synopses which may include all names, dates, places, and relationships identified within the record. Printed abstracts of original estate records may also name those persons who served as witnesses or acted in any capacity related to the proceedings. Many abstracts include some reference to the property location, and all denote the county in which the record was filed. Most, if not all, cite dates on which a will or probate proceeding was begun and/or registered.

Extracts - Extracts are verbatim transcriptions of portions of the original documents. Some published extracts are verbatim renderings of whole documents from the complete source.

Transcriptions - Transcriptions are complete printed copies of records, usually transcribed from original handwritten documents. Contemporary transcriptions may be (but are not always) verbatim copies.

Indexes - Indexes to wills and probate records are very beneficial because they can quickly lead the researcher to areas or individuals in question. Index to Fayette County, Pennsylvania Wills, 1783–1900, compiled by Bob and Mary Closson (Apollo, Pa.: Closson Press, 1980), is one such publication. This concise record lists the names of those individuals who left wills, the volume in which the will was found among the court records, the first page number of the will, and the date the will was probated.

Research Methodology - The publications’ introductory remarks often include some details relating historical background, jurisdictional information, and pertinent laws for the relevant period. With the added advantage of computer-generated indexes, today’s printed sources can be superior to many created even two decades ago. Computer-generated indexes can also be riddled with typographical and transcription errors; therefore, these must be used with care.

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Testate Estates

When a person makes a last will and testament, he or she leaves a testate estate. Originally, a will devised (gave) real estate (or land) and property attached to it—buildings, mills, timber, water rights, etc. A testament bequeathed personalty (personal property) made up of movables (lump sums of money, books, jewelry, furniture, clothing, horses, cattle, pigs, sheep, grain, tools, slaves, services of indentured servants) and receivables (book debts, mortgages, bills of exchange, and loans). American laws generally leave a person free to distribute his or her estate at will as long as it does not leave the heirs dependent for their upkeep on the state.

Wills are of three different kinds: (1) Attested wills are prepared in writing, signed by responsible witnesses who certify to the court that the will was written at the instance of the deceased of his of his or her own free will and choice and that he or she was of sound mind at the time. (2) Holographic wills are handwritten entirely by the person making the will, signed, dated, and not witnessed. If any other person writes on the will, it is invalid. In addition, the will must be found among the individual’s important papers. It cannot be filed with an attorney or other third party unless all valuable papers are so filed. In some jurisdictions, this kind of will is not valid. (3) Nuncupative wills are oral, deathbed wills dictated to witnesses who convert them to writing at the earliest possible moment and present them to the court within a specified period of time after the person dies. In some jurisdictions, this kind of will is also invalid.

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Intestate Estates

When a person dies without making a will, his or her property becomes an intestate estate. It is divided according to settlement shares determined by law. In most states, if the deceased is a married man, the widow receives one-third for her lifetime (known as her dower rights) and the rest is divided equally among the children. If a child is dead, his share is divided among his own legal heirs. An illegitimate child is entitled to inherit from his or her mother. Unless the father has acknowledged his parenthood in writing, duly witnessed and accepted by the court, or unless he later marries the mother, a child cannot inherit from the father. Some states allow the father to petition for a legislative act to legitimize his children so they can inherit, and some allow naturalization of deceased persons by special act so their heirs can inherit.

If a person dies without issue, his or her estate passes to the spouse. If there is no spouse, the estate passes to his or her parents and brothers and sisters. In some states, descent of property goes no further than this. In some, lines of descent become quite complicated, with provision even for nephews, second cousins, and others.

In community property jurisdictions (Louisiana, California, Washington, Idaho, etc.), the property that a husband and wife own at the time of marriage and the property that each individually inherits afterward remain separate property; the property which they acquire together during their married life becomes community property in which each has an undivided one-half interest. Upon the death of one, the common estate automatically reverts to the surviving spouse in fee simple—that is, with the right to sell, mortgage, exchange, bequeath, or gift by written document.

In non-community property states, a woman has a dower right or life-estate in one-third of her husband’s property. This right must be legally recognized in all transactions, including transfers of land. A man has the right of curtesy—a life-estate in any property his wife owned when they married or in any she inherits in her own right during the marriage—providing they have at least one living child who can inherit from them. Otherwise, he has a right to one-third of her property only.22 Marriage settlements contracted at the time of marriage can change these provisions. Under recent legislation, however, a woman has the right to renounce her dower claim to her husband’s estate. She must acknowledge that full disclosure of the total worth of the estate was made and that she understands what she is renouncing. This protects the estate against undue litigation. A man cannot legally disinherit his wife and leave her destitute, on the public’s mercy. In most jurisdictions, welfare help is denied, even in cases of divorce, if the husband is in a position to pay for the wife’s upkeep.

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Guardianships

A guardian is a responsible individual of legal age appointed or acknowledged by the court to manage the property ownership of those incompetent by reason of youth or mental or physical handicap to handle their own affairs. A guardian may also be called a conservator, a curator, a tutor, or a receiver.

An orphan is a minor whose father is dead or whose deceased mother left separately owned property to her child but excluded the father. In both cases, a guardian is appointed to assume the legal responsibilities of property ownership. In other words, the “orphan” may have a living parent in either case. Such a child may also be called a ward or infant. It is also common for a mother or father to be appointed guardian of his or her own children without implying adoption, formal or otherwise.

The appointment of a guardian for a minor may be a separate court process from probate, handled by a different court. Depending on the jurisdiction, the appointment of a guardian for an adult who is incompetent to handle his or her own affairs may require two additional court processes: the first to declare him or her incompetent and the second to appoint someone to act in his or her behalf.

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Probate Proceedings

Since the procedures followed in both testate and intestate cases are almost identical, both can be considered together. Most states require that probate begin the first term of court following the death of a property owner, between thirty and ninety days after death.

1. Usually, the principal heir petitions the court for authority to begin the probate process. Until recent years these petitions were made verbally and recorded only in the probate minute books. However, some jurisdictions require written petitions bearing the names of all heirs, their residences, and their ages; these are filed with the original estate papers. Such petitions are especially valuable because they may be the only documents that list all the heirs.

In a testate estate, the executor petitions for letters testamentary or authority to probate the will. In an intestate case, the surviving spouse or oldest son normally petitions for letters of administration or authority to administer the estate according to the laws of the jurisdiction. It is the responsibility of the executor or the administrator to look out for the best interest of the estate, the needs of the heirs, and the claims of the creditors.

2. Proving the will is a step that applies only to testate cases. The document is presented to the court. The witnesses to the will appear and attest that they saw the individual sign the will, that he or she was in sound mental condition and that he or she expressed his or her own free will. The court, after hearing this sworn testimony, will order that the will be recorded. Wills judged invalid are not proved and, hence, are not recorded in the will book but can often be found among the loose or miscellaneous papers of the courthouse or town hall. They will not appear in the index to probate records, and they are rarely microfilmed. You have to ask for these records to be searched at the courthouse.

Some jurisdictions require that all heirs of the estate be notified and present at the reading and recording of the will. Anyone who would argue against the admission of the will to probate may make claim then or generally forfeit any future right to contest the will.

3. The executor designated in the decedent’s will must be formally approved by the court. In intestate cases, the court appoints the administrator. Each state prescribes the order in which persons are entitled to be appointed, but, in general, this order is maintained: spouse, one of the children, parents, grandparents, brothers or sisters, uncles, aunts, nephews, nieces, great-uncles, great-aunts, first cousins, creditors, anyone legally competent, public administrators, etc.

4. An administrator must post a bond equal to the worth of the assets of the estate to insure his or her faithful performance of duty and to protect the heirs in cases of misconduct. In most states, an executor is not required to file a large bond if the decedent’s will exempts him or her from that trust.

Bondsmen were usually relatives or family friends until recently, when bonding companies replaced personal sureties. If the wife is executrix, the bondsmen will usually be her relatives. If a brother or son is executor, they will be chosen from the family of the deceased. Bondsmen can also be heirs to the estate.

5. In most testate and all intestate estates, three disinterested people (often relatives who are not potential heirs) are appointed by the court to inventory and appraise all the property of the estate. They are usually ordered to submit the inventory at the next term of court or within ninety days. This inventory protected the executor or administrator from excessive claims against the estate and protected heirs against fraud or pilfering of their inheritance. The court also used it to set probate fees, as in modern practice. As a result, the values given to each item were close to current market value, although there seems to have been a tendency to keep them low. Thus, the fees levied against the estate were lower and the sale of items at auction was ensured.

6. As soon as the inventory is made, publication of the pending probate is published. In early times, notices were tacked on the doors of courthouses, town halls, churches, etc. Later, the court required public posting at the town hall and publication three successive weeks in the major county, town, or district newspaper before probate to give interested parties opportunity to be present to voice disagreement or to present claims against the estate. The law required preservation of those publication notices. Some jurisdictions keep copies of the newspapers in which notices appeared at the county courthouse or town hall, while others clip the notices and preserve them with the case packet. It is thus possible to find missing issues of newspapers at the probate authority.

7. Another step taken before probate begins is assigning an allowance for the dependents from a portion of the estate (usually the amount is determined annually) until the estate is settled and distributed. It may take the form of cash, income-producing property (such as a herd of cattle), or money from the court-authorized sale of certain property. Usually the property so designated is exempt from creditors’ claims. At this time, also, the widow’s dower right will often be set off to provide for her support.

8. In estates involving minors or incompetent individuals, a guardian is appointed to receive and assume stewardship over their respective shares. As with administrators and executors, guardians must post a bond equal to the worth of the orphan’s estate.

9. To raise funds for the support of the widow and children or to convert perishables to cash, it is frequently necessary to conduct periodic sales of property under the surveillance of the court. First, the administrator/executor or guardian petitions the court for authority to sell, stipulating the items, why the income is needed, and how much is expected to be realized. If the court authorizes the sale, a public auctioneer is appointed and a careful account is kept of what was sold, how much each item brought, and to whom the item went.

10. In some jurisdictions, executors/administrators or guardians must account annually to the court for income received and expenses paid out of the estate, and for what purposes. In others, executors may only be required to account upon request from heirs or creditors. Because these records show heirs who die and women who marry before final settlement, they are extremely valuable for the genealogist.

11. Prior to the final settlement and distribution of the estate among the heirs, additional publication notices are issued to give claimants one last chance to voice their desires.

12. The executor/administrator must make a final accounting of receipts and disbursements of the estate before the remaining property can be divided and the responsibility ended.

13. When all parties concerned come to an agreement or when all heirs are twenty-one years of age, the property is divided and distributed to those heirs entitled to receive it; the case is closed; and the executor/administrator is released. In many probate jurisdictions, lengthy division documents will be found listing all heirs and their addresses, husbands of female heirs, and second marriages of widows. In some states, these settlement documents are found in the office of the land recorder—Division of Real Estate.

14. As each heir receives his or her portion of the estate, he or she signs a receipt or release to the executor/administrator. These receipts give the name of the heir, the amount and description of property received, the name of the executor/administrator, the names of guardians of minor children, and the name of the deceased. These releases are filed among the original estate papers.

Probate records can provide an intimate glimpse into the lifestyle of an ancestor and specific facts about the family. From wills you can discover how often the men on your pedigree entrusted their assets to a wife, whether all sons inherited equally, how the daughters fared in comparison, whether a man distributed his property to his children before his death, and who was instructed to care for the widow and younger children or for incapacitated or handicapped family members. Servants were sometimes released by will and slaves freed.

What provision was made for the widow? Was firewood delivered to her door? Were living quarters and a cash allowance for needed purchases provided? Did the allowance end on remarriage? What was to happen to her portion of the estate if she remarried?

What are the demographics of your family? Who lived in the household? What was the ratio of adults to children, males to females? Did the men live to see their grandchildren? Did the women outlive the men? How many children reached adulthood before their parents died? What were the sizes of your family units? What standard of living did your family have? Did they read and write? Did a bequest include paintings, a family Bible, fine furniture, a carriage, or musical instruments?

Also revealed in a will is biographical information: title, occupation, religious affiliation, age, place of residence, place of property ownership, associates of the family, and relationship to prominent families in the area.

Did your ancestor bequeath assets to charities, such as schools, hospitals, and churches? Did he make a contribution for the upkeep of roads and bridges? Did she support a political party?

How did your ancestor speak? Indications of local dialect and pronunciation can be found in spelling variants, especially when a will is a holograph. It can also reveal personality, character, and level of formal education.

The probate inventory gives other insights into your family’s life and how your family compared to others in the community. If items are listed room by room and the rooms labeled, you know who slept where. A man was often judged by the kind of bed he slept in, so inventories usually listed bed and bedding in considerable detail: bed curtains imply a canopied bed to keep out cold drafts. Featherbeds, sheets, coverlets, blankets, and spreads may also be listed separately.

Table linens may be listed (damask, diaper, flaxen, canvas); cooking utensils and dishes (pewter, wood, china, porcelain, silverplate, brass); lighting (candles, lamps, wicks, lantern glass, and lighter fluids). In poor households, a clock might represent almost a quarter of the estate’s total value. Pots and pans may be valued by weight, since that is the way they were bought and sold. Unfamiliar items, such as kimblins, piggins, and eshons (cheese vats and presses), may appear.

The processes of cooking, brewing, baking, dairying, and washing are described in the kinds of utility tubs and bowls used. The presence of smoothing tables or boards and flat irons indicate that clothes were ironed before wearing, and bedding may also have been “smoothed.” Sanitary facilities inside the house could consist of chamber pots and close stools, often both. The larder hints at diet—butter, cheese, ham, bacon, hanging beef, salt pork, potatoes. Particular trades or occupations emerge from tools, mercantile inventory, record books, contents of barns, granaries, and crops in the field.

A comparison of inventories from one generation of the family to another will show improvements in living conditions—from fireplace cooking to stoves, from enclosed bedsteads to heated bedrooms, from wooden platters to china. Glass in windows, unless bequeathed as heirlooms to a family member, could be sold separately from a house, so panes may be listed in the inventory as well.

Sometimes an item will be missing from an inventory because the owner gave it away before his or her death, because it was sold to cover debts prior to death, or because it is specified in the will and falls in the executor’s charge. Some inventories will end with “things unseen or forgotten,” a category with an arbitrary dollar value assigned.

An inventory is also useful for distinguishing between persons of the same name by matching inventory contents, such as horses, cattle, and pigs, with tax rolls and agricultural census entries. You can also prove the relationship between a man and his children with property, real or personal, listed in inventories and wills from one generation to the next.

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American Probate Law

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. The printed laws for several American colonies have been published in eighteen volumes by Michael Glazier, Inc., 1210 King St., Wilmington, DE 19801. Copies can be found at most law libraries.

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.

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Ages of Legal Action

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How to Locate Printed Probate Records

Locating printed county and regional probate transcriptions or indexes is easier today than ever before due to electronic media. Major library catalogs are now available at local libraries on network computer systems, in CD-ROM format, through telephone communication systems, or as microfiche copies.

Importance of Learning the Correct Locality

As indicated earlier, county boundaries have frequently changed, and these changes can prove challenging for those seeking probate materials. Which county should you look at first, and why? What if there is no comprehensive statewide index?

Correspondence

Knowledge of county formation can lead to a multitude of sources. Once these counties have been identified, other basic reference books can provide the names and addresses of local county societies. Writing to local county history and genealogical societies is often rewarding for locating printed sources for probate records, as well as other records which may be associated with them. Also check libraries in the area, which are likely to have such books.

The Family History Library Catalog

Using the Family History Library Catalog™, or FHLC, which is available online, is one of the fastest methods for locating probate materials for those who are close to the Family History Library of The Church of Jesus Christ of Latter-day Saints (LDS church) in Salt Lake City or one of its more than 2,500 branch facilities, which are known as family history centers. (See the introduction for more on family history centers.)

The Online versions of the catalog make it is simple to find a record. First, select the state of interest; second, select the county of interest; third, select the category “Probate Records.”

Use the Author/Title section (only on the microfiche edition) if you know the actual name of a book or are looking for books by a particular author—for example, any of the books listed in this chapter’s bibliography.
The Locality section identifies what is available for a particular area, presenting major subdivisions of material by country and by states within the United States. On the FHLC microfiche, information is listed according to the highest jurisdiction first, alphabetically by category, then by categories within counties, and by categories within towns.

All records relating to any probate action are listed under the term “Probate Records”; this includes wills and orphans’ court records as well as administrations, estate settlements, executor’s bonds, etc. This figure illustrates the variety of probate entries in the Family History Library Catalog.

Other Library Catalogs

Every genealogical library has a significant collection of published probate records for the areas its collection covers. Be sure to learn the terminology and process for finding probates in the catalog for each library used. Some libraries have published their catalogs in book form or in microform, or via the Internet, so that researchers can search for published records at their convenience. In particular see the Dictionary Catalog of the Local History and Genealogy Division (of the New York Public Library), as well as the Sutro Library State and Local History Catalog.

The Sutro Library is a branch of the California State Library. Located in San Francisco, it publishes a quarterly listing of all its new acquisitions in American local history and genealogy. Early compilations have been microfiched also. A large portion of the published works at the Sutro Library are available through interlibrary loan to public libraries in California and other states where the material is not otherwise available.

Bibliographies and Research Guides

Bibliographies and research guides will also help you find printed probate records. Both seek to identify the sources available for research on a given topic or for a certain locality. Chief among these is P. William Filby’s American and British Genealogy and Heraldry: A Selected List of Books (Boston: New England Historic Genealogical Society, 1983; supplement, 1987), which lists published books (except family and county histories and immigration materials) of value for family historians. The state-by-state listings include many books with wills and other probate records. Also note Kory L. Meyerink’s CD-ROM publication Genealogical Publications: A List of 50,000 Sources from the Library of Congress (Salt Lake City: Ancestry, 1997), which includes more than seven hundred sources for the United States and Great Britain that include the words “wills,” “probate,” or “inventories” in their subject headings. More than one hundred other sources, usually under the subject “genealogy,” include these words in their titles or descriptions. Both of these works are described in chapter 5, “Bibliographies and Catalogs.” In addition, guides specific to research in a city, county, or state usually list the published probate records for that locality.

Periodicals

Local genealogical and historical society newsletters and publications frequently publish abstracts of or indexes to wills and probate records. State and regional quarterlies and monthly newsletters also may include articles pertaining to these topics. In addition, organizations announce or advertise forthcoming and currently available publications in local, regional, and state societies’ journals and newsletters. For example, each month the California State Genealogical Alliance Newsletter publishes notices of compilations and publications in progress as well as those available for purchase. Most of these are local society efforts that are not widely advertised.

Perhaps the easiest means of locating articles pertaining to wills or probate materials in local, regional, state, and ethnic group periodicals is to use the Periodical Source Index (PERSI). PERSI is a topical index to the thousands of articles found in genealogical periodicals and journals. It is published by the Allen County Public Library Foundation in Fort Wayne, Indiana, and is available in book and microfiche formats and on CD-ROM from Ancestry (Salt Lake City, 1997). Because it indexes more than two thousand periodicals, it should not be overlooked. PERSI does not index every name or locality mentioned within articles, but it does index all names and places which appear in article titles. It also indexes articles which address research methodology.

PERSI is divided into three sections: locality, research methodologies, and family. The locality sections are particularly helpful for locating short abstracted or indexed probate records. First look up the locality of interest and then the record type, either “wills” or “probate.”

States are arranged alphabetically by their two-letter postal abbreviations (not by the spelling of the full state name); therefore, Iowa [IA] comes before Idaho [ID]. Countywide records are listed after statewide entries under the locality’s present-day county. Probate records and wills are listed separately; entries for both record types must be checked for each locality within PERSI. Thus, the wills of Guilford County, North Carolina, are listed apart from the other intestate records.

The title column provides a descriptive entry (not the exact title of the article). Once items have been located, the appropriate journal citation can be found in the five columns to the right, where the title of the journal is given as a four-letter abbreviation (an abbreviation key is included in an appendix to PERSI). The journal title is followed by the periodical’s volume number, issue number, month, and year. PERSI does not indicate the page numbers of the articles.

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Advantages of Printed Probate Records

Although there are always dangers in relying solely on printed material, the advantages of published probate and estate records greatly outweigh the disadvantages if you are thorough, careful, and consistently review the original documents as well. Overall, published statewide indexes to wills and estate records serve as valuable finding aids. Other benefits of printed volumes include fast retrieval, concisely recorded data, easy-to-read text, and broad availability.

Indexes

The most valuable printed works include verbatim transcripts and every-name indexes. Most provide citations to identify the facility where the original records are stored. High-quality abstracts include volume and page numbers and/or case numbers from original records; these can serve as practical and reliable indexes to the original documents.

Earlier printed compilations of estate records may not have included an every-name index, but most publications issued within the past twenty years do. Often, all persons listed in the records are included in indexes to published probate records—not just the testators. Such every-name indexes identify individuals mentioned within a will or probate record whose names do not appear in most indexes to the actual court record; this is particularly beneficial when there are no devisee (one who receives any designated portion of the estate) indexes. Every-name indexes alone make printed probate sources invaluable to the researcher.

Of course, some published probate records are solely indexes, as described earlier. While their formats vary, all are valuable and serve as useful finding aids. Most statewide compilations are listed in the chapter bibliography. Some of the difficulties in using statewide indexes are discussed below under “Limitations of Printed Probate Records—Limitations of Scope.”

Ease and Speed of Use

Another key advantage of using a published source is the ease and speed with which such records can be scanned. Reading unfamiliar handwritten documents can be difficult under the best of circumstances. When compounded by poor microfilming, faded ink, torn pages, ink that has bled through paper written on both sides, or tight bindings, the problems are greatly intensified.

Conciseness

Carefully edited abstracts also have the advantage of conciseness. Original probate records may be verbose, and many of the legal phrases used in them are irrelevant to genealogy research. Concisely recorded abstracts eliminate much of this verbiage while including significant facts.

Explanation

In the introduction, preface, and/or acknowledgment of a printed record, the editor may explain the location of the original records, identification of sources, abbreviations used in the text, historical references, and special arrangements or formatting of the text. These sections may also include suggested reference material, specific instructions to the reader, a glossary of terms, and other necessary explanations relating to text or subject.
Some introductions explain legal terms and/or foreign words used in the text. A thorough reading of these pages will afford the genealogist a much better understanding of the volume and furnish a working knowledge necessary to attain success. The best published volumes also include a map or maps relating to the period and area referred to in the abstracts.

The editor may also provide explanations for frequently included foreign words, dated phrases, misspelled names or locations, and references to names, places, or situations no longer identified in the same manner today. Such information will help you interpret the information provided.

When the compiler or editor is thoroughly familiar with the region, its records, its history, its families, the handwriting of various clerks, legal terms, and abbreviations employed in the records, the resulting publication is an excellent tool for researchers.

See Also the Terminology & Meanings of Genealogical Abbreviations - Abbreviations for those most commonly used in genealogical records.

Availability

Another benefit of printed records is their accessibility. Published estate and court records are more plentiful than ever before; numerous county and state estate and court records are published every year. Originals are usually accessible only at county courthouses or state archives, but published records are available through libraries using organizations which provide interlibrary loan services, at lending libraries for members of genealogical societies, and through special-interest groups that provide similar services to members and patrons.

Substitutes for Missing Records

While it is normally best to trust only original documents for completeness and accuracy, exceptions to this general rule depend upon the condition and availability of the original records. From county to county and from record to record, the condition of original records varies significantly. Some may be unfaded, firmly bound, and easy to read, while others are faded, torn, and crumbling; some pages may even be missing. In some courthouses, disintegrating records have been preserved by laminating them, but in others, documents and books have been mutilated, destroyed, stolen, and lost. In some cases only printed transcripts of early records, many of them made during the late 1800s and during the 1930s, remain. When original sources are irrevocably lost, these transcripts are priceless, no matter their limitations.

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Limitations of Printed Probate Records

Some excellent compilations of estate records have been produced; however, others leave much to be desired. As useful as published probate information is, the researcher must still be aware of some significant limitations.

Limited Coverage or Information

Some printed sources serve only as finding aids; they indicate that a record pertaining to a certain surname exists in a specific county, without showing given names or any detail from the document. Others provide added details but still have such limited data that they merely serve as locating tools, such as those that give only the names of people specified as relatives while ignoring names of people who do not appear to be relatives, such as in-laws, neighbors, etc.—names that are very valuable to the research process.

Frequently, the range of dates covered in a publication is narrow. But sometimes an estate is finalized many years after the testator’s death; this happens often when stipulations for distribution of property are determined by the beneficiaries’ situations—for example, when property is not to be divided until after the widow’s demise or the youngest child’s marriage or death. In such cases, the probate appears many years after the subject’s death. If the published probate record does not include the later years, the researcher working only in the death date period may not find the probate record.

A will may have been recorded more than once in original court records, particularly if a codicil was added, a caveat was filed against the property, the will was contested, or the executor died or ceased to act. In such a case, one of the records could be missing from a printed record because of jurisdictional changes (county boundary changes, territorial-to-state government changes, etc.). With only part of the proceeding at hand, the compiler might be unaware of all the related documents.

Finding a printed probate record is never a guarantee that the complete probate record has been published. Because the inheritance process can extend over several years, printed collections are often incomplete for individual cases. Also, most abstracted printed probate records are compilations that cover specific jurisdictions; they require knowledge of at least the county of residence to locate the record. Therefore, you might need to consult other records, such as census records, land and property records, and county histories, to find this information before you can begin a search of the printed probate records.

Errors in Transcription, Typing, or Interpretation

When any record is abstracted or extracted, problems can arise. Most, if not all, published transcripts contain errors; these include omissions, misread handwriting, typographical mistakes, and illegible sections due to faded ink or torn pages in the original. Additional problems with abstracts and extracts arise when those who perform the transcribing function are unfamiliar with the handwriting, legal terminology, clerks’ notations and abbreviations, and/or proper names of people and places in the area during the pertinent period. If you believe a published record should show a probate, even though it is not included in the published version, review the original records.

Other cautions against using only published probate and estate records: valuable details may have been omitted from an abstract; the reference date or pagination may be incorrect in the published work; and the compiler may have misread the original handwriting. Search for ALL variations and spellings of any name which you are researching. Be familiar with other names in the area in which you are researching which may be similar in spelling or sound to those of interest.

Unfortunately, many compilers and editors miss or are unaware of technicalities with procedures or details that affect the process and record. A transcriber or abstractor may be unfamiliar with family names in a particular county or area, consequently interpreting them incorrectly. There may be difficulty in reading handwriting in the original documents, resulting in incorrectly transcribed data. At times, errors in names, dates, and references do appear in printed works and/or indexes.

The invaluable loose papers associated with probate cases are rarely published. Additionally, the availability of such records is seldom noted in a printed collection.

Inaccuracies in Dates

Dates in publications must be carefully reviewed. Typographical errors that affect dates occur easily and are difficult to find in editing. Incorrect recording of Gregorian calendar dates or incorrect conversion of dates from the Gregorian to Julian calendar may adversely affect the information. Watch for such mistakes in entries for 1752 and earlier. (Records that show January and February dates with a double year, such as 1726/7, reflect the transition between the two calendars.)

Numbers usually contain a higher percentage of typographical errors that go undetected by the editor than do text or names. Carefully check dates and book and page references. One way to check the accuracy of dates is to check sequential entries preceding and following the one in question. If all or most other entries are chronological or consecutive and one is not, the date or book and page numbers should be considered questionable, and the data should be verified using the original whenever possible.

Problems with Indexes

Every-name indexes are very valuable, but assuming that all indexes are of this type can be very misleading. Be wary if the indexer has not explained the principle of indexing used and which categories of names were included or omitted. The editor may have purposefully omitted certain classes of names from the index to reduce its size. While most probate indexes include the names of the testator or the decedent (if an index to intestate records), there may be many other names in the record that were not included in the index.

Common groups of names that may be omitted in published probate indexes include those of the witnesses, executor, and legatees to the will and other persons mentioned incidentally, such as legatees’ spouses. Indexes to intestate records may fail to name the administrator, those who inventoried the estate, and the heirs.

In a few publications, the problem is the reverse: all of the associated persons are in the index, yet the testator or decedent is not listed because the compiler has arranged the abstracts in alphabetical order by decedent! It is the researcher’s responsibility to examine the book thoroughly and determine the principles upon which the indexing was conducted and what degree of reliance may be placed upon it.

Some extracts or abstracts are so poorly indexed that the compilation would actually be better if left unindexed—then researchers would not be led into thinking that the work had a full index. As mentioned, names may be “lost” in the index because of typographical errors, misread handwriting, or unexpected differences in spelling in the original document. Typographical errors can affect one or two letters or whole names.

As with many types of records, published compilations of estate records created long ago often contain less detail and frequently lack the every-name indexes normally found in similar publications today. For example, they may give only the names of those specified as relatives.

Transposed letters frequently cause difficulties in locating proper entries in an index.

Other problems with indexes may result from a misspelled original or indecipherable handwriting. Landers may be misread for Sanders. Surnames may be spelled incorrectly, such as “Hambleton” for Hamilton and “Umphries” for Humphries. Charles McRoddy could appear as “Charles M. Roddy.” Quakenbush may be shown as “Zuakenbush.” The names Edmund/Edmunds, Daniel/David, Lemuel/Samuel, and Edward/Edwards are exchanged frequently.

Given names can be wrongly transcribed in an index: Jehu may be misread as “John,” and Daniel may be shown as “David.” Extra letters may be typographically added; examples found in indexes include “Hklein” and “Kmartin.” When possible, it is best to compare different publications for completeness and accuracy.

Omissions Within the Abstracts

Many details in an original are necessarily eliminated in an abstracted version. In addition to the published volume, the original document must always be reviewed to determine what data has been omitted (if the original still exists).

Due to size limitations, most compilations cannot include all information contained in the original record; thus, the abstract may be lacking pertinent details for the genealogist. These include names and relationships of individuals mentioned in the record, legal descriptions of real estate, itemized personal property, details of the property divisions, connections with other individuals, references to earlier records or transactions, and other details. Some abstracts or extracts are poorly indexed, yet they give the illusion of completeness when they are not inclusive at all; for example, some countywide titles include only limited years or only abstract certain surnames.

Limitations of Scope

Supposed statewide indexes to wills and probate records can prove beneficial but, as mentioned previously, some do not include entries for all counties in the state. In cases where more than one published record exists for a particular county, they may duplicate each other to a greater or lesser extent. Compare and evaluate transcripts and the original source.

Finally, remember that, while there are more intestate cases than testate cases, their treatment in printed literature seems to be the reverse: there are many more wills in printed literature than intestate cases. Therefore, if the wills for a particular location have been published, do not assume that the intestate cases have been published also, or that there is no record of intestate cases. Contact the appropriate jurisdiction and determine the best way to search intestate files.

Misleading Titles

Sometimes the titles of publications are misleading. Who would imagine, for example, that parish registers could include references to wills? Yet, during the early colonial period, the parishes kept track of most records because they provided the greatest structure in the society of the time.

Certain statewide works may not include records for all counties because some county records are housed in separate locations. Thus, a title for a state collection may be somewhat misleading.

Many publications with varying titles contain references or citations from estate records. Examples include Marjorie Hood Fischer’s Tennessee Tidbits, 1778–1914, vol. 1 (Easley, S.C.: Southern Historical Press, 1986), and Ruth Blake Burns, Tennessee Tidbits, 1778–1914, vol. 2 (Vista, Calif.: Ram Press, 1988). These contain abstracts of court records, including wills, probates, administrations, dower allotments, petitions, guardianships, and actions against estates. Volumes titled “court records” usually include probate and estate records.

Evaluation Checklist

The researcher should learn the limitations of a transcript, extract, or abstract, and be aware of the possible pitfalls of relying solely upon transcribed records. Certain points need to be examined in order to determine the accuracy and completeness of a printed source. For example, are the facts thoroughly covered or are many blatant errors found when comparing a sample of the original with the transcription? Were the compiler and/or editor obviously familiar with the location, the handwriting, and the probate process? Before the advent of computers, indexing was a laborious process, and indexes were often incomplete. Does the index under consideration have a thorough or a partial index? Does the introduction or foreword give any indication of the limitations of the publication and an explanation of how the records can be used? This checklist will provide some help in evaluating transcribed records.

Conclusion

Those who use printed probate record indexes for genealogical interests usually use them as finding aids to locate complete original records or to find localities where other genealogical records for a particular individual or surname cluster might be found. Hopefully, this chapter has enlightened you regarding the many other advantages of using printed probate collections—especially the use of the introductory materials, which can save the hours or days necessary to learn about the particular inheritance processes in effect during a particular period in a locality.

Published compilations of estate records offer many valuable features, including availability, finding aids, fast retrieval, concisely abstracted data, and an easy-to-read version of the original. In addition, although the original records rarely include every-name indexes, printed probate records as a group are better indexed than civil court records, and more have been published than general court records.

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