By Bridget M. Sunderlin
Have you come to a place in your research where you are struggling to locate vital records? Is it getting harder to prove family relationships and brick walls are popping up everywhere? Probate records may be the key that unlocks those mysteries for you.
As you investigate further back in time, you will soon realize that census records lack names for all family members and that vital records become almost nonexistent. It is at these times that probate records, legal documents created after someone dies, become invaluable. These records establish genealogical relationships. They illuminate the world your ancestor lived in. They are fascinating!
Using Probate Records in Your Genealogy Research
You may think that probate is beyond your understanding with all the legal lingo. Or perhaps you think that your family had no money, so they couldn’t possibly have left a will. But wills are only a part of a probate, and many, many people who never created one still left behind probate records. Administrations, and especially petitions, can also hold a huge amount of genealogy information.
Don’t simply take my word for it. Just read the following passage from an 1831 petition.
Just look at all the family connections described in one document. Through this passage, we learned that Sarah petitioned her uncle’s estate to secure property and rents he originally left to her mother, Rebecca Morgan. She very clearly states the name of her uncle, her mother and her half-brothers. We might infer that Joseph Morgan was her father, giving us more to research, looking for direct evidence of this connection.
Historical probate documents can and are that rich with details, so let’s get started! Before we do, though, you may wish to review some “Key Probate Vocabulary.” It will help you better understand the legalese I was referring to earlier, and it will clarify the terms I use as we move forward.
Key Probate Vocabulary You Should Know
To better understand probate records, you will need to speak the language.
- Administration Bond – a security generated by the administrators used to prove that the administrator is capable and will settle the estate in a timely and responsible manner, per his or her fiduciary duty.
- Administrator – the person or persons who will act as fiduciary for the estate, settling it in the time allotted and will be responsible for doing so in the way the decedent would have wanted. When an administrator is appointed, this generally, but not always, means that no will was left.
- Beneficiary – the persons who will benefit from the will.
- Chattel – personal, easy to move, possessions of the decedent that are distributed or sold.
- Court Docket – the daily record of each case presented to the court, These include the enquiry asked of the court and its outcome, as well as all appointments and orders mandated by the court.
- Debts – money owed to others that must be paid before settling the estate.
- Decedent – the person who has died and is the subject of the estate.
- Distributions – articles disbursed to the beneficiaries.
- Estate – the articles left behind by the decedent including chattel, money, stocks and bonds, land, homes, indentured servants, slaves and animals.
- Executor – an appointed individual, whose name is included within the will, who will execute the will to the standards of the decedent’s written wishes.
- Fiduciary – a person or persons who are responsible legally and ethically for the outcome of the estate, with all representatives in mind, including the decedent, beneficiaries and creditors.
- Guardian – a person appointed by the court or decedent to care for the personal and financial needs of minors. Note that the surviving parent may ask for guardians to be appointed by the court.
- Heir – a person who would inherit property through familial or blood relationships (also heir-at-law).
- Intestate – dying without a known last will and testament in place.
- Orders – these are found within the court docket. The court may require key figures to complete tasks, or the court is asked to appoint key figures such as guardians or administrators.
- Probate packet/case file – the group of documents pertaining to one decedent’s estate.
- Petitions – documents questioning or clarifying the estate, these can take place years after the death, and involve other estates.
- Receipts – money collected that was owed to the decedent.
- Testate – dying with a known last will and testament in place.
More often than not, probate records are governed by the Orphan’s Court. However, your state may be different. Remember to check Circuit Court, Probate Court, Register of Wills, Superior Court and Surrogate’s Court. Also, as mention above, not every decedent left a last will and testament. So, looking for wills may not be as important as looking for other probate records such as administrations, petitions and orders.
The Process of Probate Explained
Your ancestor wrote their last will and testament. He or she then died. The will was filed with the court and probate began. Witnesses to the will offered their signatures. Executors were identified. Possibly one or more executor relinquished this duty by formally declining.
Next, the court required the executor to identify and establish an inventory of chattel or assets. Accountings were kept. Legal notices were posted in “newspapers of record” to call for creditors and those indebted to the estate to claim or repay by an established date. Chattel not bequeathed to beneficiaries was then sold off to repay debts and funeral expenses. Not until all debts were satisfied could an estate be distributed.
However, if your ancestor died intestate (without a will), then an administrator or administrators were appointed to oversee the estate. A bond determined by the courts was offered as security by the administrator. He or she then completed the same work of an executor.
If an administrator died before the probate process was complete, then another administrator was appointed. Sometimes this duty fell into the hands of the administrator’s attorney. Notations on these probate documents might include phrases such as “annexed” or “A.D.N.W.A.W.” or “de bonis non administratis.” These indicate that this administrator was appointed after the death or removal of the previous one.
Throughout the course of the probate process, petitions may have been filed against the estate. Petitions were often created by beneficiaries and other interested parties such as businesses to whom the decedent (deceased) owed money.
Be open to the fact that petitions might have been filed years after the original date of death, and may have involved more than one decedent, even crossing over generations. If a beneficiary died before fully taking possession of property bequeathed to them, that property may then have been bequeathed to another in their will. Such was the case for Sarah Morgan and her mother Rebecca (see her petition above).
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Petitions were often settled within the court docket, where we find orders assigned by the court. Perhaps the executor was required to place an advertisement and had yet to do so. The court would order that they present themselves before the court and explain why this task had yet to be fulfilled. Dockets offer great insight into the process of your ancestor’s estate.
Estates were often riddled with great discord, and took numerous years to settle. Some estates required additional legal hearings in courts much higher than Circuit Court to be decided. When the stakes were higher, the more documentation was generated. Such was the case for John McDonogh of New Orleans, who left the bulk of his $2 million fortune to fund schools in Baltimore and New Orleans. His well-documented will was contested to the U.S. Supreme Court where it was upheld, leaving his heirs with very little to no part of his enormous estate.
Probates Provide a Treasure Trove of Evidence
If you can simply read all the way through each probate document, you will be rewarded with an abundance of evidence. From phrases like “I bequeath to my son, Samuel Smith” to “I have purposely not included my son Samuel Smith in my will,” you will be thrilled to learn the “in their own words” wishes of your ancestor.
Through petitions and orders, you may see the lackadaisical nature of your ancestor’s son. Within inventories, you may pinpoint specific items that your ancestor owned. Most importantly, you may identify specific family connections.
All probate starts with the Last Will & Testament. If your ancestor died before writing his or her wishes, then you should look for Letters of Administration. Once you know who the administrator was, documents will appear such as Administrator Bonds, Estate Dockets, Inventories, Petitions, Guardianships, Orphan’s Court Proceedings, and Final Accounts.
Before you jump in head-first, always take a moment to locate indexes. Mine these for names of the decedent. Generally, but not always estates were filed in the decedent’s name. Also look for names of orphaned children and even administrators. Documents are sometimes filed under their names. Indexes are usually found in the front and back of the record books, either online or at the court. Always ask for help so that your time is used efficiently.
Where to Find Probate Records for Genealogy
Where can you find these records, you ask? Start with two key places, familysearch.org and your state archives websites. Maryland, for instance, holds their probate records at the Hall of Records in Annapolis but they are digitizing documents daily.
The Kansas historical society holds microfilm records. If your ancestors hailed from Nevada, look at their library and archives site. The Chester County Archives in Pennsylvania also holds records for several surrounding counties and even some from Maryland. Harris County in Texas offers a searchable site for probate from 1837 to the present. The State of Washington has an amazing digital archive.
Family Search is currently working with state archives to digitize probate records and has a plethora of these records online for states like Illinois, New York, and Utah. Their site is completely free. Check to see what they hold for yours. And remember my helpful hint about researching indexes to help you navigate the thousands, if not millions of images which are usually organized by county.
If you can’t track them this way, then move into county repositories and don’t forget to search the court system for each county within a state. Maybe they are still kept in the local Orphan’s Court or Register of Wills offices. Google these terms based on your county of interest for help finding the right archives and contacts.
And don’t overlook paid subscription sites like MyHeritage and Ancestry, several offer probate records.
Last but not least, do not forget that one very important place to search. Newspapers! Remember those legal notices required by the court? Not to mention those high-profile estates. Maybe your family’s probate headlined in the local papers. For help finding papers to search read this article about free repositories and this one about using Newspapers.com.
Always be open to finding probate records in an assortment of repositories and you will be well on your way to solving your family mysteries.
If you are looking for probate’s outside of the U.S. check out our International Research section.
Bridget Sunderlin is a professional genealogist serving clients in and around Maryland with a Master’s in teaching. She has been actively researching her Irish roots for well over 30 years. Throughout her research, she has come to find that her family actually hails from all of the countries within the British Isles. In 2017, she visited some of her ancestral lands, meeting quite a few Irish and Scottish cousins along the way. Ms. Sunderlin believes that the act of researching one’s family history helps us to “be rooted.”
Image: Funeral of James Abbott McNeill Whistler in Chelsea, London, July 1903. Library of Congress.