No genealogical research in America prior to the 20th century is complete without a search for probate records. Most of us are at least a little familiar with these sorts of documents, although perhaps only through words and documents which affect us even in the 21st century such as “wills” and “estates.”
In short, probate is the broad term for the process by which a deceased individual’s worldly possessions are legally divided and debts are paid upon his or her death. How this has functioned has changed in various ways over the centuries and it can be a very involved topic; however, the basic concepts are ones with which every serious genealogist should familiarize himself or herself.
This article is not meant to be in any way comprehensive, but to educate those not familiar with the topic with a broad overview. For more detailed specifics, we suggest referencing The Source: A Guidebook to American Genealogy, edited by Loretto Dennis Szucs and Sandra Hargreaves Luebking, available for purchase or on shelves at local libraries.
Let’s get some basic terminology covered. An estate refers to everything an individual owns, which includes not only real estate – like land and buildings – but also money, furniture, livestock, clothing, tools, and the like. By law, when an individual dies, certain people are legally entitled to claim these possessions. Typically, those heirs are by default the deceased’s spouse and children, but an individual who knows the end of his or her life is near will often write a will specifying their more exact wishes if they differ. Sometimes this is straightforward. Other times it may involve the addition of grandchildren or friends, the intentional omission of a child with whom they have quarreled, or the gift of property to an organization like a church, cemetery, or school.
(It should also be noted that in the United States and England, it will be rare to find a will written by a woman prior to the late 1800s because of the laws regulating women’s property ownership and other rights at that time. Exceptions may include well-off single women or widows. Other European countries like France and Spain had a legal system which was more egalitarian in that respect, and so female participation in the courts was more common.)
Many genealogists are familiar with the last will and testament, and it makes sense, because these can be of immense genealogical value. A will can often name the spouse and surviving children (including the married names of grown daughters), plus other family members. This is particularly important in the 1700s, for example, when there are essentially no birth or death certificates or censuses which list a complete family unit. It gives an indication of the family’s socioeconomic status based on the quantity and type of goods they owned, and can even create a narrow window of possible death dates for the author of the will – again, an extremely valuable feature in early periods. (For example, if John Smith wrote his will on 2 September 1801, and his estate was probated by the court beginning on 21 November 1801, it can be assumed that the man died between those two dates.)
What many genealogists neglect, however, are the records created when a person died intestate, or without a will. For many ancestors, particularly those who were poorer or who died suddenly, this is very common. Belongings and debts still had to be settled, and the following records are important to be aware of this case:
Bonds – When an individual died without leaving a will, the court would appoint someone to oversee the distribution of the estate. This person was called the administrator, and his authority was granted by a different document called letters of administration. An administrator would often be required to post a bond, or a form of cash collateral, promising that he would perform his duties honestly and to the best of his ability. Administrators were often friends of the family, neighbors, or distant relatives like nephews or cousins (though seldom potential beneficiaries, as that might create a conflict of interest).
Inventories – Before the deceased’s estate could be distributed, the court needed to determine its contents and value. Therefore, an inventory can be one of the most fascinating probate documents, as it is essentially a list of all of the family possessions (minus real estate). Depending on the wealth of the family, these could range from beds, wagons, and pots, to mirrors, books, paintings, horses, and cloth. One or more appraisers were assigned to create this enumeration (and they often had to sign bonds of their own).
Distributions – A document of distribution was created and submitted by the court by the appraisers and administrator when the proper appraisal had been made and the creditors and heirs had received their portions. This is one of the most likely records in an intestate probate packet to list the names of the family members and for that reason can be the most valuable.
Guardianship – Often, if a man died young and suddenly, he left minor children. These children would be in need not only of immediate support without a breadwinner in their home but also someone to manage their inheritance until they came of age. While their surviving mother could and often was named their legal guardian, that person could also be an uncle or trusted friend. Note also that minors were often referred to as “orphans” even if their mother was still living. Take care not to assume that both parents are deceased if this term is used in legal records.
In addition to these basic records and terms, you may also encounter others created specifically for your ancestor and his or her circumstances. For example, American widows were typically guaranteed up to one-third of their husbands’ property for their support, regardless of other debts or claims to the estate. Furthermore, some Southern states had a provision called the widow’s one-year support, which is exactly as its name suggests. Widows could petition the court to have the division of their husband’s estate and payment of his debts postponed for one year while she sought other living arrangements and worked through her grief.
Probate is a very large topic in genealogy and one that is essential to understand at least in simple terms. One need not be a legal scholar to make use of these documents and solve brick wall problems. In many cases, in fact, probate documents are the only records which state relationships and have the potential to definitively connect early generations.
Some can be found digitized on genealogy websites like FamilySearch.org, MyHeritage.com and Ancestry.com, while others are located within county courthouses and other repositories. While wills are becoming quickly indexed, that is not always the case for all probate records. It may require time, patience, and sleuthing, but these records could just provide the answer you’re looking for.
Need help solving an early U.S. family mystery? Legacy Tree can help! We have experts in all eras and regions. Contact us today for a free consultation.
William Lyons says
One way to avoid probate is through the use of beneficiary designations. The only assets that pass through probate are assets the decedent owned in his or her sole name without any beneficiary designations.
The beneficiary designations must be considered as a part of your entire estate plan.
It is also important to note that even though the assets pass directly to the beneficiary, these assets are still a part of the your taxable estate.
Finally, most standard Wills indicate that the estate should pay all the inheritance and estate taxes prior to the distribution of the estate assets.
Michael Haslam says
Probate can be a lengthy process that ties up assets and depreciates the estate’s overall value. Most states require the services of a lawyer or estate planning service to comply with probate laws.
Thanks for sharing this post.
I will surely look forward to your further updates.
Good luck buddy! Keep doing great work!
Katy - Legacy Tree Genealogists Project Manager says
Thanks for your comment. As genealogists, we write these articles from a historical standpoint as probate was handled then, with less of a focus on modern practices. Still, you’re absolutely right about the process having the potential to be a lengthy one; we’ve encountered probate packets with documentation spread out over two decades or more.
Heneth Quest says
The simplest belongings that pass through probate are belongings the decedent owned in his or her sole name with none beneficiary designations.
Amber - Legacy Tree Genealogists says
Zoe Campos says
I’m glad that you talked about how some people are considered legally entitled to claim a deceased person’s assets. It made me think that my mother has the right to some of her parents’ land titles that have been claimed by her older brother. It might be a good idea to consult lawyers and discuss that trust litigation is all about.
Beth Harrison says
Good idea to check into family land title rights!