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U. S. Probate Records Class Handout: Difference between revisions
U. S. Probate Records Class Handout (view source)
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Guide to probate records for genealogy or family history. | Guide to probate records for genealogy or family history. | ||
==='''WHAT IS PROBATE?'''=== | ==='''WHAT IS PROBATE?'''=== | ||
*Probate is the''' legal process''' through which an individual’s real estate (property) and personal estate (possessions) | *Probate is the''' legal process''' through which an individual’s real estate (property) and personal estate (possessions) are distributed to his or her heirs, whether or not there is a will. '''Testate''' is the term used when a will existed in the settling of the estate. '''Intestate''' is the term used when there was no will written and the court decides how the estate is to be distributed. | ||
===='''DID YOUR ANCESTOR GO THROUGH PROBATE?'''==== | ===='''DID YOUR ANCESTOR GO THROUGH PROBATE?'''==== | ||
*'''Not everyone in the United States wrote a will or went through probate'''. Nearly 10% of the pre-1900 adult population made wills, usually males with property. Before 1900, about 25% of estates were probated, even though no will had been written. | *'''Not everyone in the United States wrote a will or went through probate'''. Nearly 10% of the pre-1900 adult population made wills, usually males with property. Before 1900, about 25% of estates were probated, even though no will had been written. | ||
*However, this percentage is higher for rural areas because that is where the land was owned. '''If your ancestor owned land,''' search for probate records to see how their land was distributed at their death. | *However, this percentage is higher for rural areas because that is where the land was owned. '''If your ancestor owned land,''' search for probate records to see how their land was distributed at their death. If your ancestor owned land in more than one location, look for probate records in each of those locations. | ||
*There are not as many probate records for women, but '''if the woman was single, widowed, or divorced, it is more likely that she would have had property that would have gone through probate.''' | *There are not as many probate records for women, but '''if the woman was single, widowed, or divorced, it is more likely that she would have had property that would have gone through probate.''' | ||
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===='''VALUE OF PROBATE RECORDS'''==== | ===='''VALUE OF PROBATE RECORDS'''==== | ||
*The single most important value of probate records is the''' proof of relationships'''. In a will, people are identified as a wife, son, daughter, nephew, niece, brother, sister, etc. If there is no will, the distribution is made by the court to the heirs who are usually family members. | *The single most important value of probate records is the''' proof of relationships'''. In a will, people are identified as a wife, son, daughter, nephew, niece, brother, sister, etc. If there is no will, the distribution is made by the court to the heirs, who are usually family members. | ||
*Other helpful and interesting information that may be learned from probate files are: '''date and place of death, name of the spouse and other possible family members and relationships, location of the heirs, property ownership, and guardianship of minor children.''' | *Other helpful and interesting information that may be learned from probate files are: '''date and place of death, name of the spouse and other possible family members and relationships, location of the heirs, property ownership, and guardianship of minor children.''' | ||
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*An '''inventory''' of your ancestor’s personal belongings would be made and debts would be paid out of the estate, revealing your ancestor’s economic standing. | *An '''inventory''' of your ancestor’s personal belongings would be made and debts would be paid out of the estate, revealing your ancestor’s economic standing. | ||
*Probate is under the jurisdiction of the state government | *Probate is under the jurisdiction of the state government that establishes the probate laws for its state, but '''probate is administered at the county level''', and it is important to know what laws and records are kept for the state you are researching. Some colonial records were kept by the town or colony. Be sure to look at your state and its probate process at FamilySearch Wiki under [State] Probate Records. | ||
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*'''Filing a Petition''': A petition began the probate process by informing the probate court that an individual had died and that their estate should enter probate. The petition was presented by an executor (male) or executrix (female) who was named in a will written by the deceased individual. If the estate was intestate, an interested person (usually a widow, adult children, or creditor) filed a petition with the court to begin the probate process and a court date was set. Petitions may (although not always) include the deceased person’s date and place of death or list all potential heirs and their current residence. The petition proceedings were recorded in the probate minute book. | *'''Filing a Petition''': A petition began the probate process by informing the probate court that an individual had died and that their estate should enter probate. The petition was presented by an executor (male) or executrix (female) who was named in a will written by the deceased individual. If the estate was intestate, an interested person (usually a widow, adult children, or creditor) filed a petition with the court to begin the probate process and a court date was set. Petitions may (although not always) include the deceased person’s date and place of death or list all potential heirs and their current residence. The petition proceedings were recorded in the probate minute book. | ||
*'''Publications:''' Throughout the probate process,'''notifications were published in the local newspaper''', usually for three weeks, beginning with the petition. Other notices, such as an auction of the personal effects, sale of the land, or notice to the creditors, were also made public. A law required that the publication notices be preserved and | *'''Publications:''' Throughout the probate process, '''notifications were published in the local newspaper''', usually for three weeks, beginning with the petition. Other notices, such as an auction of the personal effects, sale of the land, or notice to the creditors, were also made public. A law required that the publication notices be preserved and these notices became part of the probate packet. Search for probate publications in online newspapers for the area you are researching at websites such as Chronicling America at http://chroniclingamerica.loc.gov/, MyHeritage.com, and NewspaperArchive.com (free at FamilySearch Centers). | ||
====The will==== | ====The will==== | ||
*'''Proving the | *'''Proving the will:''' If there was a will, the witnesses to a will testified in court that they were present when the will was signed and that the deceased person was of sound mind when he signed the will and that he signed it of his own free will. If anyone wished to contest the validity of the will, they presented their case at this time. Once a will had been '''proved''', it was copied into the court records with a statement indicating that it has been proved. The original will was usually kept in the probate packet. For genealogists, the proving of the will can be used to determine an approximate date of death when no other records of death exist. | ||
*'''Will books''' are usually indexed, but the index to wills only includes the deceased person’s names and not the names of everyone mentioned in a will. | *'''Will books''' are usually indexed, but the index to wills only includes the deceased person’s names and not the names of everyone mentioned in a will. | ||
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====Relationships in a will==== | ====Relationships in a will==== | ||
*When studying a will be sure to keep in mind that the people mentioned in the will may sometimes not be who they seem to be: | *When studying a will be sure to keep in mind that the people mentioned in the will may sometimes not be who they seem to be: | ||
**A wife may not be the mother of all the children in the will and maiden names of the female | **A wife may not be the mother of all the children in the will and maiden names of the female spouses are not mentioned. | ||
**Not all children may be included in the will—they may be deceased, or had already received their inheritance, or they may have been disowned. Children may not be listed in birth order and sons may be listed before daughters. | **Not all children may be included in the will—they may be deceased, or had already received their inheritance, or they may have been disowned. Children may not be listed in birth order and sons may be listed before daughters. | ||
**A cousin may mean a nephew or niece; a son-in-law could mean a stepson; a nephew could mean a grandson; or a brother or sister could mean a brother or sister in the Gospel. | **A cousin may mean a nephew or niece; a son-in-law could mean a stepson; a nephew could mean a grandson; or a brother or sister could mean a brother or sister in the Gospel. | ||
====Administration of an estate==== | ====Administration of an estate==== | ||
*'''Letters | *'''Letters testamentary/Letters of administration:''' If the will was proved to be valid, Letters Testamentary were issued to the executor, but if the will was contested and proved invalid, the estate was considered intestate. If the estate was intestate (because the will was invalid or because there was no will) the court appointed an '''administrator (male)''' or '''administratrix (female)''' and '''Letters of administration''' were issued. The responsibility of the executor or the administrator was to satisfy the claims of the creditors, to care for the deceased person’s property, to determine the names and locations of the beneficiaries, to investigate the validity of claims against the estate, and to carry out the instructions of the probate court. | ||
::*'''Example:''' | ::*'''Example:''' | ||
::Susanna Twigg, John Twigg, John North, & Jesse Cheney of Allegany County, Maryland, are firmly in the full sum of $2,000, dated 18th day of Oct. 1821. If Susanna Twigg & John Twigg shall well and truly perform the office of Executors of John Twigg of John then the above obligation shall be void. | ::Susanna Twigg, John Twigg, John North, & Jesse Cheney of Allegany County, Maryland, are firmly in the full sum of $2,000, dated 18th day of Oct. 1821. If Susanna Twigg & John Twigg shall well and truly perform the office of Executors of John Twigg of John then the above obligation shall be void. | ||
*'''Bond/Bondsmen''' An executor or administrator was required to post bond to ensure the proper completion of | *'''Bond/Bondsmen''' An executor or administrator was required to post bond to ensure the proper completion of his duties. If the executor or administrator did not perform his duties properly, he would pay a fee to the court. One or more people, sometimes family members, were required to co-sign the bond as sureties or bondsmen who agreed to pay the bond if the executor or administrator was unable to pay. | ||
====Inventory==== | ====Inventory==== | ||
*'''Inventory:''' The value of an estate had to be determined before it could be settled, | *'''Inventory:''' The value of an estate had to be determined before it could be settled; therefore, the executor or administrator hired two or three impartial individuals to appraise the estate and list all personal belongings of the deceased person. The appraisal or inventory may also include the property and slaves of the deceased person. The inventory may have been copied into the will book and the original inventory was kept in the probate packet. Once the inventory was made, the items listed were auctioned off and it was noted who purchased the items. Usually members of the family purchased many of the items listed in the inventory. | ||
:::*'''Example:''' | :::*'''Example:''' | ||
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*For minors under the age of fourteen, guardians were chosen by the court. For minors fourteen years old or older, a guardian was chosen by the minors themselves. Guardianship documents list the names of the minor children and their relationship to the deceased person. A guardian was released when a child became 21 years old, at which time the guardian would make a final account of their care of the minor. Records of guardianship may have been kept separately from the other probate records. | *For minors under the age of fourteen, guardians were chosen by the court. For minors fourteen years old or older, a guardian was chosen by the minors themselves. Guardianship documents list the names of the minor children and their relationship to the deceased person. A guardian was released when a child became 21 years old, at which time the guardian would make a final account of their care of the minor. Records of guardianship may have been kept separately from the other probate records. | ||
*'''Bills of | *'''Bills of sale:''' During probate, it may have been '''necessary to sell parts of the estate''' in order to pay creditors, to provide support for the widow and minor children, or to distribute the property of an estate. This was done by public auction. The final bills of sale from these auctions were filed with the court. Bills of sale listed the names of individuals who purchased items at the auction. These individuals are often relatives, friends, and neighbors of the deceased person. | ||
*'''Annual or | *'''Annual or yearly accountings:''' Administrators (and sometimes executors) were required to file an annual accounting of the proceedings of the estate showing payments made to creditors, payments received from those who owed the deceased person money, and payments to the heirs. | ||
====Distributing the estate==== | ====Distributing the estate==== | ||
*'''Receipts:''' When an executor or administrator paid debts owed by the estate and collected money from those who owed the deceased person, receipts were issued which were filed with the annual accounting and final settlement. Among these will be receipts signed by the heirs as they receive money from the estate.''' Receipts give interesting personal information about the deceased person’s business and personal relationships.''' If the original receipt can be found in the probate packet, you may find your ancestor’s signature. | *'''Receipts:''' When an executor or administrator paid debts owed by the estate and collected money from those who owed the deceased person, receipts were issued which were filed with the annual accounting and final settlement. Among these will be receipts signed by the heirs as they receive money from the estate.''' Receipts give interesting personal information about the deceased person’s business and personal relationships.''' If the original receipt can be found in the probate packet, you may find your ancestor’s signature. | ||
:::::::'''Example:''' | :::::::'''Example:''' | ||
:::::::Received January 3rd 1848 of Thomas Twigg Admr of John M. Twigg dec’d., Twenty Dollars in full for one Cherry Coffin and Case. David Smith | :::::::Received January 3rd 1848 of Thomas Twigg Admr of John M. Twigg dec’d., Twenty Dollars in full for one Cherry Coffin and Case. David Smith | ||
*'''Final | *'''Final distribution or Final settlement:''' When all the bills were paid and all the money owed to the deceased person collected, the executor or administrator filed a petition with the court and all the heirs were notified. The estate was then divided and distributed to the heirs—according to the will if there was one, or if there was no will, according to the laws of the state. In the settlement papers, heirs of the estate were listed (sometimes with their current location), each with the amount of property they received from the estate. | ||
*'''Release:''' As each heir received their portion of the estate, they would sign a receipt which showed their name and the amount of money or property they had received. The name of the executor or administrator would also appear on the release. A guardian would be listed on the release of a minor child. A release was filed among the original estate papers. At this time the estate was closed. | *'''Release:''' As each heir received their portion of the estate, they would sign a receipt which showed their name and the amount of money or property they had received. The name of the executor or administrator would also appear on the release. A guardian would be listed on the release of a minor child. A release was filed among the original estate papers. At this time the estate was closed. | ||
*Heirs may have generated '''court cases''' throughout the probate process by '''contesting the will, suing the executor for failure to perform his duties, or requesting that the executor or administrator be replaced, etc.''' Often there would be a suit from one heir | *Heirs may have generated '''court cases''' throughout the probate process by '''contesting the will, suing the executor for failure to perform his duties, or requesting that the executor or administrator be replaced, etc.''' Often there would be a suit from one heir against other heirs over the distribution of the land. Court cases may be found with the probate court or other types of county courts, such as the orphan’s court or the circuit court. | ||
====Your record of the will==== | ====Your record of the will==== | ||
*When you find probate records about your ancestor, be sure to '''transcribe them completely''' so that you won’t have to keep reading the old handwriting over and over, and so you don’t miss any important clues or information about your family in the record. See the word list attached to this handout that will help when transcribing your ancestor’s probate records. Also, copy the '''source information''' and where you found the probate records for future reference. | *When you find probate records about your ancestor, be sure to '''transcribe them completely''' so that you won’t have to keep reading the old handwriting over and over, and so you don’t miss any important clues or information about your family in the record. See the word list attached to this handout that will help when transcribing your ancestor’s probate records. Also, copy the '''source information''' and where you found the probate records for future reference. | ||
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===='''WHERE TO FIND PROBATE RECORDS'''==== | ===='''WHERE TO FIND PROBATE RECORDS'''==== | ||
When searching for probate records, remember there are '''many types of documents to find.''' You will want to search for more than just the will in order to learn all the information available about your ancestor in probate records. Probate records could be in more than one ledger, cabinet, packet, or office and will be a challenge to gather all together, but worth the effort. | When searching for probate records, remember there are '''many types of documents to find.''' You will want to search for more than just the will in order to learn all the information available about your ancestor in probate records. Probate records could be in more than one ledger, cabinet, packet, or office and will be a challenge to gather all together, but it is worth the effort. | ||
====''Online Probate Indexes and Records''==== | ====''Online Probate Indexes and Records''==== | ||
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*Many county probate records have been microfilmed by the FamilySearch Library, but may not have been digitized yet. Search the catalog for the county where your ancestor died to find probate records on microfilm or in books. | *Many county probate records have been microfilmed by the FamilySearch Library, but may not have been digitized yet. Search the catalog for the county where your ancestor died to find probate records on microfilm or in books. | ||
===='''County | ===='''County Courthouses'''==== | ||
*Most original probate books and probate packets are kept at the county courthouse where the estate was settled.Sometimes the probate records have been removed to a central repository, such as the state archives. | *Most original probate books and probate packets are kept at the county courthouse where the estate was settled.Sometimes the probate records have been removed to a central repository, such as the state archives. | ||
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'''Accounts:''' Accounts are the reports of administrators, executors, guardians, trustees, and conservators of transactions for the estate.<br> | '''Accounts:''' Accounts are the reports of administrators, executors, guardians, trustees, and conservators of transactions for the estate.<br> | ||
'''Administration of an | '''Administration of an estate:''' Any proceeding relating to the settlement of a decedent’s estate, whether testate or intestate.<br> | ||
'''Administrator (-trix):''' The person appointed by the court to manage the decedent’s estate during administration when the decedent left no | '''Administrator (-trix):''' The person appointed by the court to manage the decedent’s estate during administration when the decedent left no will (died intestate).<br> | ||
'''Adult:''' A person who has attained the age of 18 years.<br> | '''Adult:''' A person who has attained the age of 18 years.<br> | ||
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'''Case file:''' The case file is all of the various papers that have been created throughout the probate process. These are bound together and archived by case number.<br> | '''Case file:''' The case file is all of the various papers that have been created throughout the probate process. These are bound together and archived by case number.<br> | ||
'''Codicil:''' An addition to a | '''Codicil:''' An addition to a will.<br> | ||
'''Contest:''' To contest a will means to dispute the will.<br> | '''Contest:''' To contest a will means to dispute the will.<br> | ||
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'''Devise:''' Devise is to transfer real property through a will.<br> | '''Devise:''' Devise is to transfer real property through a will.<br> | ||
'''Devisee:'''A devisee is a person receiving real property through a will.<br> | '''Devisee:''' A devisee is a person receiving real property through a will.<br> | ||
'''Docket:''' A docket is a list or schedule of cases to be presented before the court.<br> | '''Docket:''' A docket is a list or schedule of cases to be presented before the court.<br> | ||
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'''Estate:''' All real and personal property left by a decedent in which he or she had a right or interest.<br> | '''Estate:''' All real and personal property left by a decedent in which he or she had a right or interest.<br> | ||
'''Executor/Executrix:''' The person or party designated in a | '''Executor/Executrix:''' The person or party designated in a will to act as the personal representative of a decedent’s estate.<br> | ||
'''Final account:''' The final account is the final accounting of the estate and how it was distributed.<br> | '''Final account:''' The final account is the final accounting of the estate and how it was distributed.<br> | ||
'''Guardian:''' A person appointed by the court to supervise | '''Guardian:''' A person appointed by the court to supervise the financial affairs of one not legally competent to manage them by himself, such as a minor or disabled or incompetent person.<br> | ||
'''Heir:''' An heir is a person who inherits property upon the death of the owner.<br> | '''Heir:''' An heir is a person who inherits property upon the death of the owner.<br> | ||
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'''Incompetent:''' Any person who is incapable of managing his person or estate.<br> | '''Incompetent:''' Any person who is incapable of managing his person or estate.<br> | ||
'''Intestate:''' Usually refers to a decedent who died without leaving a valid | '''Intestate:''' Usually refers to a decedent who died without leaving a valid will; partial intestacy occurs when the will does not dispose of all of the estate.<br> | ||
'''Inventory:''' A listing of all the decedent’s assets. An inventory is filed with the court by the personal representative in a court supervised estate.<br> | '''Inventory:''' A listing of all the decedent’s assets. An inventory is filed with the court by the personal representative in a court-supervised estate.<br> | ||
'''Issue:''' Issue refers to offspring, biological children, or legitimate descendants.<br> | '''Issue:''' Issue refers to offspring, biological children, or legitimate descendants.<br> | ||
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'''Kindred:''' Those related by blood, as distinguished from those related only by marriage.<br> | '''Kindred:''' Those related by blood, as distinguished from those related only by marriage.<br> | ||
'''Last | '''Last will and testament:''' A document that directs the disposition of the testator’s property after death and which is executed in accordance with certain statutory requirements.<br> | ||
'''Legacy:''' A legacy is a gift (bequest) of real or personal property by way of a will.<br> | '''Legacy:''' A legacy is a gift (bequest) of real or personal property by way of a will.<br> | ||
'''Legatee:''' The person to whom personal property is given by | '''Legatee:''' The person to whom personal property is given by will.<br> | ||
'''Letters of | '''Letters of administration:''' Letters of Administration refers to the formal document from the court granting authority to handle the affairs of the estate.<br> | ||
'''Letters | '''Letters testamentary:''' Letters testamentary refers to the document approving the appointment of an executor and authorizing that person to administer the estate.<br> | ||
'''Majority:''' When a person reaches majority, he or she is of full legal age.<br> | '''Majority:''' When a person reaches majority, he or she is of full legal age.<br> | ||
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'''Minutes:''' Minutes are the notes made of the probate court proceedings.<br> | '''Minutes:''' Minutes are the notes made of the probate court proceedings.<br> | ||
'''Next of | '''Next of kin:''' An individual’s nearest blood relatives.<br> | ||
'''Nuncupative will:''' A nuncupative will is spoken in the presence of witnesses.<br> | '''Nuncupative will:''' A nuncupative will is spoken in the presence of witnesses.<br> | ||
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'''Paternal:''' Pertaining to the father’s side of the family.<br> | '''Paternal:''' Pertaining to the father’s side of the family.<br> | ||
'''Personal | '''Personal property:''' All assets other than land and those things permanently affixed to the land.<br> | ||
'''Petition:''' A petition is an application to a court requesting the right to settle an estate.<br> | '''Petition:''' A petition is an application to a court requesting the right to settle an estate.<br> | ||
'''Posthumous | '''Posthumous child:''' A child born after the death of his or her father.<br> | ||
'''Probate:''' The process of administration of a decedent’s estate under the supervision of the court.<br> | '''Probate:''' The process of administration of a decedent’s estate under the supervision of the court.<br> | ||
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'''Publications:''' Notices are published so that creditors, and others with an interest in the estate, have an opportunity to collect debts or contact the legal representatives.<br> | '''Publications:''' Notices are published so that creditors, and others with an interest in the estate, have an opportunity to collect debts or contact the legal representatives.<br> | ||
'''Real | '''Real property:''' Land and anything permanently attached to it.<br> | ||
'''Register:''' A register is a bound book in which official matters are recorded by the court clerk.<br> | '''Register:''' A register is a bound book in which official matters are recorded by the court clerk.<br> | ||
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'''Testamentary:''' Testamentary items or matters mean that they pertain to a will.<br> | '''Testamentary:''' Testamentary items or matters mean that they pertain to a will.<br> | ||
'''Testate:''' Leaving a valid | '''Testate:''' Leaving a valid will at death.<br> | ||
'''Testator(trix):''' The testator (male) or testatrix (female) is the person making the will or testament.<br> | '''Testator(trix):''' The testator (male) or testatrix (female) is the person making the will or testament.<br> | ||
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'''Will:''' A document that directs the disposition of the testator’s property after death.<br> | '''Will:''' A document that directs the disposition of the testator’s property after death.<br> | ||
'''Witness to a | '''Witness to a will:''' One who certifies that he or she witnessed the making of a will by a testator.<br> | ||
[[Category:United States Probate Records]] [[Category:Beginners]] | [[Category:United States Probate Records]] [[Category:Beginners]] | ||