Shirley Hornbeck's This and That Genealogy Tips on Probate Records and Wills

When possible, visit the courthouses in person because only you will recognize possible variations on your surnames. If you must write to the courthouse, expect them to do a limited search for the exact record you require and they may request a search fee. In most cases the search is free but you will be required to pay for copies of records. Be sure to ALWAYS enclose a SASE with any request.

Most probate offices have general indexes to their records which refer to original will books and estate papers. Some do not, so careful investigation of each volume's index is required. Probate jurisdiction has varied from state to state both in responsibility and the governmental level at which probating was hired. Some places in New England such as Connecticut and Vermont probated on a probate district level, comprised of one or more towns. Massachusetts and Maine functioned on a county level, while New Hampshire functioned on a provincial level before 1772 but on a county level after. Prior to the formation of the United States, New York County handled all probate matters for the state of New York, and it wasn't until after 1780 that the probate burden was shifted to the individual counties. During colonial times, probate matters were handled by the General Court, the Particular Court, or some other court, but many colonies, including Pennsylvania, set up special Probate Courts or Orphans Courts. In some Midwestern states in the 1800's, upon the death of an individual, his property was simply handed over to his spouse without any formal proceedings. Some counties today have such matters handled by the Probate Judge, the Clerk of the Circuit Court, or the County Clerk. In some Midwestern states in the 1800's, upon the death of an individual, his property was simply handed over to his spouse without any formal proceedings.

II find the The Handy Book For Genealogists invaluable for addresses of courthouses and other very valuable genealogy information but there is also The Red Book which gives similar information. These books will tell you the location of records county clerk, clerk of court, probate judge, etc.), the time frame of the records, when the county was formed, and the address of the courthouse.

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

The usual procedure for administration of probate is that after a person possessed of estate of any size dies, an interested party petitions the court to probate the estate. This person may be a friend of the deceased, the surviving spouse, other relatives, a creditor, or a public official. The petition usually contains the name of the deceased, date and place of his death, name and place of residence of the surviving spouse, and the names and residences of all known heirs. The petition is usually filed among related probate papers. Such records are referred to as the "files" or "packets" and contain all papers relating to the estate. Some files have been destroyed or moved to state archives, but most remain in their respective county offices.

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

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

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

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

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

During the probate process the executor or administrator must keep an accounting of his actions and report to the court concerning his work. Letters may be received, depositions taken, affidavits signed, and other papers initiated which might help you solve a genealogical problem.

Be sure to read every paper in the file.

When you locate a will, dates are important to note. There may also be a codicil which is a change to the will that was made at a later date than the will. The oldest child is often listed first. Sometimes all the children are named in the order of their birth. Sons-in-law are often named instead of the daughter. Daughters-in-law may be mentioned if a son is deceased.

Scandals and disobedience are sometimes reasons to make exceptions in a will. Names of deceased children may be mentioned in instructions for burial plot locations. Brothers of the deceased person are sometimes named as overseers. Married sons are very often given money. Namesakes sometimes receive more of an inheritance than the other heirs do. Guardians are sometimes named for children under 21. However, a minor over the age of 14 may choose his or her own guardian. Misspelling is common. Do not overlook collateral lines when you have the opportunity to follow them.

When land was sold, the spouse had to be listed in the land record. Land records should be searched after a death as often a list of heirs will be shown during partition of the estate and even sometimes a map.

If there is a will, it is probated by an Executor - if there is no will, the estate is cared for by an Administrator appointed by the court.

When a will is proved, it is the first step in the probate process. Proved means the will is accepted by the court as being the authentic will of the deceased person. The person designated as executor either accepts or declines the role of executor. If he/she declines, the court decides what person will assume that role. The spouse usually is considered next in line if he/she was not designated in the will for that role. Once the will is proved the rest of the probate process takes place. Incidentally, when there is an administrator appointed during the probate process, it means there was no will, so an administration begins. In other words, the person's assets are disposed of according to the laws for that state at that time. Now and then, the term, administrator is mistakenly used when there is a will. In any case, when you write to a probate court for a will, be sure also to ask whether there is a will OR administration, just in case the person died without a will (that is, died intestate).

Sometimes administrations contain a lot more information than a will. The terms of a will are not always carried out. If they are not carried out, that is how it will be unless someone protests officially to the court. It is important to pay attention to all these factors or you can miss important information.

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