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Probate is the “court procedure by which a will is proved to be valid or invalid” and encompasses “all matters and proceedings pertaining to the administration of estates, guardianships, etc.” Various types of records are created throughout the probate process. These may include, wills, bonds, petitions, accounts, inventories, administrations, orders, decrees, and distributions. These documents are extremely valuable to genealogists and should not be neglected. In many instances, they are the only known source of relevant information such as the decedent’s date of death, names of his or her spouse, children, parents, siblings, in-laws, neighbors, associates, relatives, and their places of residence. They may also include information about adoption or guardianship of minor children and dependents. For further information about the probate process, types of probate records, analyzing probate records, and to access a glossary of probate terms, see United States Probate Records.
New York has a complicated history regarding the recording of probates. Before 1787, probates were handled by a variety of courts whose jurisdictions changed often.
New Netherland Period
Until the 1680s, wills were probated by either notary publics or aldermen, according to Dutch law and custom. Unfortunately, the law did not require wills to be recorded at a public archive. The notaries kept these wills and other original legal documents (such as marriage contracts, guardianships, letters of apprenticeship, powers of attorney, contracts, and conveyances) in their personal custody. Some notarial records of persons in New Netherland (what is now New York and New Jersey) eventually ended up at the old Amsterdam Municipal Archives.
A 5,000 card index to notarial records of the city of Amsterdam from 1598–1750 gives information about persons in New Netherland (what is now Now York and New Jersey). It is called Noord Amerika Chronologie (North American Chronology). The abstracts give the old-world place of origin of immigrants to New Netherland. The collection is available on microfilm at the New York State Library at http://www.nysl.nysed.gov/, microfilm number A-FM 200-I. It is not available at the Family History Library.
Additional notarial records of New York are found in:
- West-Indische Compagnie (Nederlands). Notulenboeken, 1623–1674 (Minute books, 1623–1674) (Salt Lake City: Genealogical Society of Utah, 1964; Family History Library films 373422–23; Family History Library films 488127–30). Originals are at the Algemeen Rijksarchief (National Archives) at http://www.nationaalarchief.nl/ in 's-Gravenhage (The Hague) and microfilm copies are at the New York State Library. Some notarial records for Albany and Kingston have also survived.
Some wills are recorded in Arnold van Laer's Register of the Provincial Secretary, 1638–1660.
From 1656–1668, orphanmasters were appointed to oversee the inheritances of minors. In 1668 the orphanmasters court ceased to exist in New Netherland. Their surviving records, primarily for New York families, are at the New York City Municipal Archives, and are translated and published in:
- Fernow, Berthold, transcriber and editor. Minutes of the Orphanmasters of New Amsterdam, 1655–1663. Two Volumes. Publications of the Committee on History and Tradition of the Colonial Dames of the State of New York, Number 1. New York, New York: Francis P. Harper, 1902–07. (Family History Library film 1730415.)
- O'Callaghan, E.B. The Minutes of the Orphanmasters of New Amsterdam, 1663–1668. Baltimore, Maryland: Genealogical Publishing Company, 1976. (Family History Library book 974.7 A1 #147.) Indexed; shows relationships and places of origin
The orphanmaster's court records in the Netherlands (Europe) from the 1650s to 1852 are indexed. A few of these records touch on people who emigrated to New Netherland. They include settlements and divisions of estates with provision for minor children, appointments of guardians, copies of wills, and burial records. They are only available at the Amsterdam Gemeentearchief (Municipal Archives) at http://gemeentearchief.amsterdam.nl/.
New England Period
Many wills were recorded in deed books—particularly in English settlements in New Netherland, such as Gravesend and the eastern towns of Long Island outside Dutch jurisdiction. When the English took over, probates were initially under the jurisdiction of either the court of assizes or the courts of session. By 1686, the governor's prerogative court centralized the recording of probates. In the colonial era, the prerogative court usually probated wills and administrations. The governor, who functioned as the "ordinary" or "surrogate general," had the authority to probate estates. Because the governor could not personally oversee probates, he appointed local surrogates to act in his behalf.
In 1691, city and county courts of common pleas also began handling probate matters. Courts of common pleas began handling probates in each county, with the exception that estates in the southern district (Orange, Richmond, Westchester, and Kings counties) were proved in New York County. (The Orange County Court of Common Pleas was allowed in 1750 to rule on probates.) Wills from Suffolk and Queens counties were also filed in New York. All these records later came into the custody of the New York County Surrogate's Court. Before 1787, some wills were also recorded in county and town records.
Under the first state constitution of 1778, the court of probates replaced the prerogative court. The Court of probates handled all probates from 1778–1787, except in British-occupied New York City. There the court continued to operate under the governor's direction throughout the war. Records in the possession of this court date back to 1665. After 1787, it probated the estates of persons who owned property in one county and died in another. It also had appellate jurisdiction over the surrogate courts. The court of probates was done away with in 1823, and the court of chancery assumed its probate functions.
When Albany became the capital of New York in 1797, many records were moved there, particularly for areas outside the southern district. These records were first in the custody of the court of probates and later the court of appeals; therefore, they are not at the Albany County Surrogate's office. As a result of a 1799 law, most pre-1787 probates from Kings, New York, Queens, Richmond, Suffolk, and Westchester Counties that had been sent to Albany were returned to the New York County Surrogate's Court in 1802. They were later deposited at Queens College, and have recently been transferred to the New York State Archives.
When the court of chancery was abolished in 1847, its records were also sent to the court of appeals of Albany. In the 1960s, these and many records of the New York County Surrogate's Court were sent to The Historical Documents Collection at Queens College, where they were later microfilmed. The court of appeals documents have since been transferred back to Albany to the New York State Archives. These records are now at the state archives as Records of the New York Court of Probates and its Colonial Predecessors, 1664–1823. The collection contains wills, 1671–1815; accounts, 1666–1823; and administrations, 1700–1823. The records of the First Circuit Chancery Court are still at the New York County Courthouse, Office of the City Clerk.
Understanding the New York probate laws and how they changed over time can help us learn how the estate was administered, taxed, and distributed and might help to solve difficult genealogical problems.
Additional information about New York state statutes relating to probate matters can be found at law libraries. For example:
Online digital versions of state statutes can often be found by conducting a search engine search for the term, "New York statutes." The following are examples of free, digital books related to New York probate laws:
- New York Research Outline. Salt Lake City, Utah: Intellectual Reserve, Inc., Family History Department, 1998, 2005.
There are several helpful statewide and downstate indexes and transcripts to help you search pre-1823 wills and other probate records. Some are indexed by name of deceased persons, heirs, witnesses, executors, and administrators:
- Fernow, Berthold, compiler. Calendar of Wills On File and Recorded in the Offices of the Clerk of the Court of Appeals, of the County Clerk at Albany, and of the Secretary of State, 1626–1836. 1896. Reprint, Baltimore, Maryland: Genealogical Publishing Company, 1967. (Family History Library book 974.7 P28f 1967; film 416895 or 930248, item 2; fiche 6046668.) The original wills, dated 1629–1802, are at the New York State Archives, and some are on microfilm at the Family History Library.
- Pelletreau, William Smith, editor, and Robert H. Kelby, indexer, Abstracts of Wills on File in the Surrogate's Office, City of New York, 1665–1801. 17 Volumes. Collections of the New-York Historical Society, for the Years 1892–1908, Volumes. 25–41. New York, New York: New-York Historical Society, 1892–1909. (Family History Library book 974.7 B4n v. 25–41; films 509196, 873857, and 845296–302; fiche 6046928.) Each volume is individually indexed. The original wills are at the State Archives and handwritten 19th century transcripts are bound in books at the New York County Surrogate's Court. Both sets are on film at the Family History Library, but the originals were filmed to only about 1738. The book and page numbers found in these published abstracts refer to the copies.
- Scott, Kenneth and James A Owre, editors. Genealogical Data from Inventories of New York Estates, 1666–1825. New York: New York Genealogical and Biographical Society, 1970. (Family History Library book 974.7 P28s)
- Scott, Kenneth, editor. Genealogical Data from New York Administration Bonds, 1753–1799. Collections of the New York Genealogical and Biographical Society, Volume 10. New York, 1969. (Family History Library book 974.7 B4ne v. 10.) From 1753–1799, bonds were required when wills were probated or letters of administration were issued. The bonds often give names, residences, occupations, and family relationships.
- Scott, Kenneth, editor. Genealogical Data from Further New York Administration Bonds, 1791–1798. New York Genealogical and Biographical Society Collections, Volume 11. New York, 1971. (Family History Library book 974.7 B4ne v. 11.)
- Sawyer, Ray C., compiler and editor. Index of Wills for New York County, 1662–1875. Six Volumes. New York, New York: R. Sawyer, 1930–51. (Family History Library film 860313.)
- Barber, Gertrude Audrey.Index to Letters of Administration of New York County from 1743–1875. Six Volumes. New York, New York: G. Barber, 1950–51. (Family History Library book 974.71 P22b; film 1425588 items 2–7.) Administrators are often relatives of the deceased.
- Remington, Gordon L., New York State Probate Records: A Genealogist's Guide to Testate and Intestate Records. Second Edition. New England Historic Genealogical Society, 2011. FHL Book 974.7 D27rn
The Family History Library has similar abstracts for many other counties on microfilm.
Surrogate's Court Records
From May 1787 to the present, county surrogate's courts have recorded probates. However, the court of probates and court of chancery handled estates of deceased persons who died in one county but who owned property in another. An 1823 law mandated that all probates come under the jurisdiction of the county surrogate's courts. Each surrogate's court has a comprehensive index to all probate records, including the unrecorded probate packets.
The most important probate record is the probate packet, or estate file. A much larger percentage of the New York population is represented in the estate files than in the will books. The file contains copies of all documents related to estate settlement, including will or administration, bond, and inventory. Since about 1830, a petition that lists names of heirs, relationships to the deceased, and residences is also included. These packets have been microfilmed and made available at the Family History Library for some counties of New York.
Beginning in 1787, copies of probates have been recorded in books by the surrogate. The Family History Library has copies of will books and index books for most counties. For example, the Family History Library has New York County wills from 1665–1916 and an index to 1923 on 525 rolls of microfilm. The library also has microfilms of administrations books and guardianships for most counties. Most counties have consolidated estate index books, which index estate files, wills, administrations, letters testamentary, guardianships, administration bonds, guardian bonds, and so forth. If you need copies of documents from a surrogate court, be prepared to pay a large fee.
In New York the probate packets may be called estate files--These contain the documents involved in probating an estate. There are also probate proceedings, which may contain petitions listing next of kin, petitions for guardianship over minors, and orders for heirs to appear in court. Sometimes the wills are included. Many New York probate packets and probate proceedings are on microfilm at the Family History Library, for example:
- New York. Surrogate's Court (New York County). Probate Proceedings, 1830–1865. Salt Lake City, Utah: Genealogical Society of Utah, 1972. (On 228 Family History Library films.) The probate proceedings are arranged by month of final filing. This date can be found under the decedent's surname in the index to wills. The index to the wills from 1662–1910 is on Family History Library films 872164–69).
- SAMPUBCO - Index of testators of many thousands of Wills.
- ↑ Henry Campbell Black, Black's Law Dictionary, 5th ed. (St. Paul, Minnesota: West Publishing Co., 1979), 1081, "probate."
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