Probate records are court records created after an individual's death that relate to a court's decisions regarding the distribution of his estate to his heirs or creditors and the care of his dependents. You may find the individual's death date, the names of family members, family relationships, and residences. You may also learn about the adoption or guardianship of minor children and dependents. These documents are essential for research because they usually pre-date the birth and death records kept by civil authorities.

Not everyone left an estate that was probated by a court. Estates were probated for approximately 25 percent of the heads of households in the United States before 1900, whether or not the individual left a will.

While probate records are one of the most accurate sources of genealogical evidence, they must be used with some caution. For example, they may omit the names of deceased family members or those who have previously received an inheritance, or the spouse mentioned in a will may not be the parent of the children mentioned.

The Probate Process

Anyone of legal age, sound mind, and freedom from restraint had the right to leave a last will and testament. Nearly 10 percent of the pre-1900 adult population made one or more wills. Males with valuable property were more likely to have left a will. Because wills often list the names of many family members, as much as half the population either left a will or was mentioned in one.

An individual who left a will is said to have died “testate.” Someone who did not leave a will (or a valid will) died “intestate.” The probate process is essentially the same for both. The complete process may have required many years.

The probate process began with the filing of a petition by an heir, creditor, or other interested person. A petition is an application to a court requesting the right to settle an estate. The petition was filed with the court that served the area where the deceased owned property. Additional petitions may have been filed in other localities where he owned property or resided. The petition may name the heirs of the deceased, their relationship, and sometimes their residence.

If a will was available, it was then presented to the court with the testimony of witnesses as to its authenticity. A will is a written and legal expression of the individual's instructions regarding his property at the time of his death. The will usually describes the estate and often gives the names and relationships of heirs or beneficiaries. The affidavit of the witnesses includes the date or proof of death. If accepted by the court, a copy of the will was recorded in a will book or register kept by the clerk of the court. The clerk may have made errors when he transcribed the will, but the original will is often kept in the probate packet (see “probate packet” below).

The court then appointed an individual to “settle” the estate. The will usually named an individual whom the deceased wanted to serve as “executor” of his estate. The court authorized the executor to proceed by issuing letters testamentary. If there was no will, the court appointed an “administrator” instead, by issuing letters of administration. These letters may include the death date. The date of the letters is sometimes used in place of an actual death date. The administrator or executor was usually an heir or a close friend of the deceased. He may have been a creditor.

In most cases, the court required the administrator (and sometimes the executor) to post a bond to ensure that he would properly complete his duties. The bond required the administrator to pay a fee to the court if he failed to adequately administer the estate. One or more persons were required to co-sign the bond as “sureties.” These individuals were often members of the family or closely associated with the family.

An appraiser then prepared an inventory that listed the property in the estate and obtained an appraisal of its value. In intestate cases the inventory is very important as it may describe the land, tools, slaves, and other personal property at the time of death. These records are sometimes transcribed in the will books or in separate volumes, but the originals may be in the probate packet.

After receiving the inventory and appraisal, the court ruled on how the estate was to be distributed. If there was no will, the estate was divided according to the laws of the state. The court then authorized the executor or administrator to distribute the estate.

The administrator or executor may have had to first sell some of the property to clear any outstanding debts. He submitted accounts to the court of all transactions pertaining to the administration of the estate. These records can identify persons known by the deceased during his lifetime, including family members, friends, and creditors.

When the distribution was completed and payments to the creditors and heirs had been made, he presented to the court a record or decree of distribution and settlement. This listed the beneficiaries of the estate and the property each received. This is often the most helpful source of family information in an intestate case.

The clerk of the court retained all the original documents pertaining to a probate case in a probate packet or probate estate papers (also known as “estate packets,” “case file,” or “estate files”). These contain the original wills, petitions, letters, bonds, inventories, settlements, and other records. Copies of some or all of these documents may also have been recorded in separate books.

The court may have appointed a guardian to care for minor children or incompetent adults. In some cases a parent was appointed as the guardian for his own child. Sometimes male relatives were made guardians even though the mother was alive. The records may include letters of guardianship (appointment of a guardian), bonds, sale of property (to provide for a minor's needs), accounts (account of the guardian's services and support in behalf of the minor), and a final account when the child comes of age and a guardian is no longer needed. Records of guardianship may be kept separately from other probate papers, or a different court may have jurisdiction over guardianship.

Availability of Probate Records

In colonial times wills were sometimes proved in courts in the old country. Some are indexed in books like:

Coldham, Peter Wilson. American Wills and Administrations in the Prerogative Court of Canterbury, 1610-1857. Baltimore: Genealogical Publishing, 1989. (FHL book 942 P27c; computer number 15448.) Lists over 4,800 wills with name, residence, relatives, and date.

Coldham, Peter Wilson. American Wills Proved in London, 1611-1775. Baltimore: Genealogical Publishing, 1992. (FHL book 973 P27ca; computer number 686962.) Abstracts over 6,800 wills showing name, residence, occupation, date, and relatives.

Dobson, David. Scottish-American Wills, 1650-1900. Baltimore: Genealogical Publishing, 1991. (FHL book 973 P22d; computer number 467334.) Over 2,000 citations including name, occupation, residence, and date.

Each state developed its own court system and procedures for handling probates. In most states, probate records are presently recorded by a county clerk, except in Connecticut and Vermont, where they are kept by probate districts, and Rhode Island, where they are kept by the town clerk. Some colonial records were kept by the town or the colony. The keeping of wills and estate papers usually began when the county was organized. Research outlines available for each state explain which courts were responsible for probate in that state.

Search all probate courts in all localities where the individual resided or had property. Inventories of the records at a county courthouse may help you locate the records. See the state research outlines for more information on the probate process and records of each state.

You can contact the courthouse to request a search of the indexes for the time period and surnames you need. Then request photocopies of the complete probate packet.

Many early probate records have been transcribed, indexed, and published. The Family History Library has statewide indexes or transcripts of large collections of wills that have been published for Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Georgia, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Ohio, Rhode Island, South Carolina, Tennessee, Virginia, and West Virginia. These are listed in the Locality Search of the Family History Library Catalog under [STATE] - PROBATE RECORDS. You can find further information about probate records in research outlines available for each state.

Return to top of page

Previous Document   Next Document

©1998, 2001 by Intellectual Reserve, Inc. All rights reserved. Printed in the USA. No part of this document may be reprinted, posted on-line, or reproduced in any form for any purpose without the prior written permission of the copyright holder. FamilySearch is a trademark of Intellectual Reserve, Inc.
[FamilySearch^TM: Research Guidance
Version of Data: 6/9/2001]