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United States Probate Records
Probate records are court records created after an individual's death that relate to a court's decisions regarding the distribution of the estate to the heirs or creditors and the care of dependents. This process took place whether there was a will (testate) or not (intestate). 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. You may also learn about the adoption or guardianship of minor children and dependents. Additional clues often found in probate records are an ancestor's previous residence, occupation, land ownership, household items, former spouse(s), religion, and military service.
Probate records are essential for research because they often pre-date the birth and death records kept by civil authorities.
Estates were probated for approximately 25 percent of the heads of households in the United States before 1900, whether or not the individual left a will. The percentage was higher for rural areas than for urban areas because of the greater likelihood of land ownership for farmers. Because wills often list the names of many family members, as much as half the population either left a will or was mentioned in one.
While probate records are one of the most accurate sources of genealogical evidence, they must be used with some caution. For example,
- Not everyone left an estate that was probated by a court.
- Those named in the will are not necessarily related to the testator.
- A wife is not necessarily the mother of the children named.
- Deceased family members or those who previously received an inheritance might not be mentioned in the records.
- Probate records can be filed in more than one cabinet, ledger, or packet and in more than one office.
- Transcribed records might be incomplete, misread, or incorrectly transcribed so consult the original when possible.
- The county of residence at the time of death usually must be known in order to locate probate records.
- Rarely do indexes of probate records include every name mentioned in the records.
Probate is a function of state governments. Therefore, the laws and resulting records vary from state to state and changed over time. Probate records for many states can be found at the local county courthouse. The particular office of jurisdiction might be that of the Probate Court, the Equity Court, the Register of Wills, the County Clerk, the Circuit Court, or others. Some colonial records were kept by the town or the colony. See the wiki pages of each state for more information on pre-statehood, historical, and current probate records and jurisdictions.
United States probate law derived from English common law and from Spanish community property law, depending on the state. Under English common law, a married woman could only make a will of real property with her husband's consent or with an antenuptial contract. Under Spanish community property law, property acquired while married belongs equally to husband and wife. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington are community property states.
Probate matters for the original English colonies were handled under English law. The American Colonial Probate Records article offers important sources for these colonial records.
- Black, Henry Campbell. Black's Law Dictionary: Definitions of Terms and Phrases of American and English Jurisprudence, Ancient and Modern. 6th edition. St. Paul, Minnesota: West Publishing, 1990.
- Eichholz, Alice, Editor. Redbook: American State, County, and Town Sources. Third Edition. Provo, Utah: Ancestry, 2004. There is a Probate Records section under each state's listings.
- Greenwood, Val D. The Researcher's Guide to American Genealogy. Of particular interest are the chapters, "Understanding Probate Records and Basic Legal Terminology," "What About Wills?" and "The Intestate—Miscellaneous Probate Records—Guardianships."
- Rose, Christine. Courthouse Research for Family Historians: Your Guide to Genealogical Treasures. San Jose, California: CR Publications, 2004. Of particular interest are the chapters, "Estates Galore," "Estate Documents," "Milking Every Clue from Estates," and "Strategies that Work."
Many early probate records have been transcribed, indexed, and published. The Family History Library has statewide indexes or transcripts of large collections of wills that have been published for Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Georgia, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Ohio, Rhode Island, South Carolina, Tennessee, Virginia, and West Virginia. These are listed in the Place Search of the Family History Library Catalog under:
- [STATE] - PROBATE RECORDS
Testate Records vs. Intestate Records
Whether a person has a will or not affects the type of records that will be created in the probate process:
Testate--The deceased individual had a will.
Intestate--No will was created by the deceased.
|Testate Estate Records||Intestate Estate Records|
Probate by State
- Anne Roach, Courthouse Records Overview (35 minute online video) FamilySearch Research Classes Online, 2010.
- Sampubco A gateway to Indexes of Will, Guardianships, Probate Records, and Letters Testamentary