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Canada Probate Records
Probate records are court records that describe the distribution of a person’s estate after he dies. They may give:
- Death date.
- Names of heirs and guardians.
- An inventory of the estate.
- Names of witnesses.
These records are very helpful for research because civil authorities began recording probate actions before they recorded birth and death records.
Probate records were not created for every person who died. The laws of Prince Edward Island and Quebec required all estates to be probated, whether or not the individual left a will. In Ontario thousands of wills were registered at land offices and did not go through a court probate process. See Ontario Land and Property. In other Canadian provinces, estates were probated for perhaps 10 percent of the heads of household before 1900.
While probate records are one of the most accurate sources of genealogical evidence, use them with some caution because:
They may omit the names of deceased family members or those who previously received an inheritance.
The spouse mentioned in a will may not be the parent of the children mentioned.
Relationships noted in the records may not have the same meaning today.
The Probate Process
The probate process for Canada outside the province of Quebec follows patterns of English common law and is similar to the process in most states of the United States (United States Probate Records). In Quebec, the civil law is based on an old French law called the coûtume de Paris (Custom of Paris), so probate there differs in some details from the steps outlined below. In French Canada, including early Acadia (Nova Scotia) and early and modern Quebec, copies of many documents associated with estates and their settlement were filed with notaries (see "Canada Notarial Records").
Last wills and testaments were much rarer in early Quebec than in English-speaking areas because the civil law predetermined how an estate would be divided. Only those who wanted to leave property to a religious order or who had no living heirs would make a will. To avoid effects of the law, Quebec families often made donations entre vifs, property distributions among living individuals.
Outside Quebec, anyone of legal age, sound mind, and freedom from restraint had the right to leave a last will and testament. Wills and testaments were made primarily by the merchant or upper-middle class, the majority of whom lived in cities. Males with valuable property were more likely to have left a will, while families of ordinary farmers usually arranged matters among themselves without a will and avoided probate.
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 similar for both and may have required many years.
1. 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. The petition may name the heirs of the deceased, their relationship, and sometimes their residence.
2. 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, legal expression of a person’s wishes for himself and his property at the time of his death. It usually describes the estate and 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 sometimes 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).
3. The court then appointed an individual to "settle" the estate. The will usually named the person the deceased wanted 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. The date of the letters is sometimes used in place of an actual death date. The administrator or executor was often a relative or a close friend of the deceased. He may have been a creditor.
4. 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 were often family members or close associates of the family.
5. The administrator or executor then prepared an inventory that listed the property in the estate and obtained an appraisal of its value. These records are sometimes transcribed in the will books or other volumes; the originals may be in the probate packet.
6. 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 province. The court then authorized the executor or administrator to distribute the estate.
7. The administrator or executor may have had to first sell some property to clear outstanding debts. He submitted accounts to the court of all transactions pertaining to the estate. These records can identify people known by the deceased during his lifetime, including family members, friends, and creditors.
8. 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 family information in an intestate case.
9. The clerk of the court retained all original documents pertaining to a case in a probate packet or probate estate papers (also known as estate packets, case files, or estate files). These contain the original wills, petitions, letters, bonds, inventories, settlements, and other records. Some or all of these documents may also have been copied in separate books.
Records of Guardianship. The court may have appointed a "guardian" to care for minor children or incompetent adults. In some cases a parent is appointed as the guardian for his own child. 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 separate from other probate papers, or a different court may have jurisdiction over guardianship.
Availability of Probate Records
In the mid-1600s, notaries in French Canada began keeping inventories and other papers about estates (see "Notarial Records"). In the late 1700s, the keeping of wills and estate papers began under English law.
In English Canada, probate records were kept by probate or surrogate courts. Often the size of the estate determined which court held jurisdiction. Search the records of all probate courts in all places where the individual had property.
If the court’s decision was disputed, there may be records in a court of appeal: a district court or superior or supreme court of the province. Inventories of the records at a local archive may help you locate these records. See Canada Archives and Libraries.
Probate records before 1930 are usually at provincial archives, with microfilm copies at the appropriate court. More recent probate records are usually only at the court. You may need to contact or visit the archive or court to obtain all of the papers.
The Family History Library has a good collection of pre- 1930 probate records from Nova Scotia, New Brunswick, and Ontario and some from Manitoba. The library is acquiring probate records from Newfoundland and British Columbia. These include will books, letters of administration, probate files, and other records. Some of the records may have separate indexes. See the Locality Search of the Family History Library Catalog under:
[PROVINCE] - PROBATE RECORDS
[PROVINCE], [COUNTY] - PROBATE RECORDS
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