2. Understanding Probate Records
& Basic Legal Terminology – Ch 15
• Probate Records: All records which relate to the
disposition of an estate after its owner’s death.
• Testate: Died leaving a will.
• Intestate: Died leaving no will.
• State handles wills, laws can differ state to state.
• Anyone can make a will if
• Sound mind
• Legal age
• Free from restraint
3. Content & Genealogical Value
• Died with no property – Probate records may
not have direct value, but….
• Witnesses, beneficiaries, executors or trustees
or innocent third parties.
• Most people either left wills or mentioned in
• Family oriented source
4. • In frontier American, wills more common than
you think as these were land and property
• Land was inexpensive, so many could afford to
• At a time when few records were kept,
probate records are a great resource.
5. Limitations of Probate Records
1. Not everyone left a will, even if they had
intended to do so.
2. Some wills may not mention spouses and
children. Some wills mention names, but we
may not know their exact relationships.
3. Places of residence of next-of-kin is rare in
early probate cases.
6. Limitations cont.
4. Maiden names of female spouses of next-of-
kin is rarely used; but names of sons-in-laws
or brothers-in-laws may be mentioned.
5. Exact date of death may not be mentioned.
6. If you can not find a will, do not assume
there is not one. People move, even towards
the end of their life (maybe to live with a
child) and their records may be there, and
not where they lived most of their lives.
7. 7. Probates are usually indexed within each
jurisdictions (county), but most of these
indexes are only to testators (persons who
made the will) and intestates and not to
beneficiaries or heirs.
Probate records were not designed as a
genealogical source, but rather as a legal
vehicle for settling estates in the most
equitable manner and for legally transferring
the deceased property rights. No original
record was kept as genealogy as its prime
objective. However, we must make the good
of what we have available, including Probate
10. Probate Process
• All rights & property which a person owns or
is entitled to when he dies may be dispose of
by a will, subject to the payment of debts
other legitimate obligation.
• Can be left to a widow, children, relatives or to
11. Married Women
• Incompetent to make a will of real estate
(even with husband’s consent), unless
previously entered into an antenuptial
contract or aggrement to preserve that right.
• Could make a will of personal property with
• Widow or unmarried woman could do as she
13. Legal Requirements
• Of Sound Mind
• Of Legal Age
– Varies state to state
– Currently age 18 for most states
– Historically, age 21 was “legal age”, although some
states allow younger than this to make wills for
14. Legal Requirements cont.
• Free from restraint
A will becomes invalid if:
– The testator was fraudulently induced to sign a will
which he believed to be another.
– The testator was deceived as to the content of the will
– A legacy was given to a person who fraudulently
assumed character not his real one.
– There have been any fraudulent impositions on the
15. • Anytime you use probate records you will find
it helpful to understand the basics of probate
custom and law in the state where your
problem is centered.
• Thorough research may depend on that
16. What About Wills? Ch 16
• Wish or a desire, but in legal terms….
• Declaration of a person’s wishes or desires
concerning the final disposition of his
property which if properly executed, becomes
mandatory after he is dead.
• May be called testament, devise or last will
17. Kinds of Wills
• Come wills are comedic
• Can be very long
• Can be very short
• See page 332-334
18. Proving the Will
1. The making & proper execution of the will.
2. Death of the testator
3. Will be presented for probate before proper
judicial authority to show it is the last will &
testament of the decedent.
4. Court to admit the will to probate.
19. Proving Will cont.
5. Upon admission to probate & payment of
small fee the will recorded & registered by
the court, and also indexed to be found later.
6. Executor, with court authorization, proceeds
to pay the just obligations of the deceased &
have this approved by the court. “Notice to
20. Proving Will cont.
7. After obligations of estate have been
discharged & the Court has approved, the
specific provisions of the will are carried out
as stipulated by the will. “decree of
21. The Contested Will
If the will does not give a person what he feels
he is justly due, or if omitted completely, he
may look for grounds where the will can be
contested, maybe the testator was not of
Not everyone has a right to contest, only
those with an interest in the estate.
22. • The proceedings and documents created from
a contested will can be a goldmine to a
• A will is always contested in the court of
original probate jurisdiction, but the final
judgment of that court is appealable through
regular appelate channels.
23. Value of Wills
B. Time Period
C. Values that are not so obvious
A. Former places of residence.
B. Can help prove connections in common names
C. Give clues about other possible records
D. Clues as to the death date.
E. Usually executors, witnesses, etc are relatives.
24. Record Problems
• Incomplete lists of family members
• Inconclusive relationships
• No relationships
• Wife & children not related
• Other problems
• Legal Jargon
25. Finding & Using Wills
• For present names of courts and the limits of
their jurisdiction – See Section VI, p. 345
• Some probate records have been published
and available in book form.
• Some are abstracted, but use with caution.
• Know the jurisdiction originally produced &
recorded the will.
• Look for the index.
• Some have reverse indexes based on
27. Last note….
Will may give clues as to your ancestor’s origin,
what country did he immigrate from?
(Will post on Slideshare.com soon)