* About Wills & Probate * Guardianship *Definitions * Online Lessons to help you learn more *
* How to locate and obtain Probate Records *
* Examples of Will and Probate Records *
About Wills & Probate
When talking about an estate, a person dies either testate or intestate
- testate (with a will)
- the document will specify and Executor or Executrix
- may never specify the date of death
- may not list all children (some may have received their share prior to the death)
- or even name the wife ("my beloved wife")
- property is divided as the testator (writer of the will) wishes
- intestate (without a will).
- the court will appoint an Administrator or Administratrix
- usually includes death date information
- names wife and lists all potential heirs
- property is inherited in shares determined by relationship; sometimes the amount inherited, relative to that inherited by others will help you establish relationships
Guardianship
Guardianship may occur
- to take responsibility for the care and safety of children
- Children under 14 guardian appointed
- Children 14 or over could choose own guardian
- to safeguard the estate of an incompetent person
- these guardianships can be removed, should the need go away
Glossary of Terms:
A quick (and unofficial) guide to terminology associated with probate records:
(see also this more comprehencive glossary on FamilySearch.org)
- Administrator: The person responsible for settling an estate without a will.
- Bequeath: to give personal property; a bequest is a gift or inheritance of personal property.
- Devise : to give real property; the person to whom the property is given is called the devisee.
- Codicil: an addition to the will, changing from or adding to directions provided in the original.
- Curtesy: see "life estate"
- Docket: the book that lists and
- Dower: see "life estate."
- Estate File: will include both testate and intestate files; see also "probate packet".
- Executor: The person responsible for settling the estate when there is a will. This person is named in the will, but does not always serve. In that case, the court appoints an executor. See also Administrator.
- Infant: a monor; not yet of legal age (varies from state to state, but most commonly either 18 or 21)
- Infant or child of tender years (or tender age): an infant under the age of 1
- Inventory: the listing of goods to be distributed; a view into the holdings of the household at the time. Sometimes these goods would be sold at public auction to raise money to either meet expenses or distribute to heirs.
- Life estate: an estate that lasts only a lifetime
- curtesy: The life estate to which the husband is entitled upon the death of a wife, on land held in her name, provided they had children. More common in colonial and early American wills.
- dower: the life estate to which the wife had claim, upon the death of a husband; typically 1/3 of the value of the lands and buildings. More common in colonial and early American wills.
- Letters of administration: a document issued by the court authorizing an administrator to betin settling an estte for which there is no will.
- Letters testamentary: a document issued by the court authorizing the executor to begin settling an estate for which there is a will
- Personal property: see "property"
- Petition: application to probate a will or open the estate of a person who died without a will.
- Probate Packet: the compilation of papers associated with a probate case; sometimes called probate or estate files
- Property may be designated personal (moveable) property or real property.
- personal property, sometimes called moveable property is distinguised from real property
- real property is the any land and structures owned; real estate; see also "devise."
- Public auction: the settlement of an estate sometimes necessitated a public auction to convert personal property not
- Real property: see "property"
- Surety: a bond, posted to guarantee performance of the executor or administrator.
- Will -- the actual document, usually made with the assistance of a lawyer or following a very specific format that assures all requirements are met for the will to be valid.
- Holographic (also called Olographic) will: a will handwritten, signed and dated in testator's own handwritting. Usually does not require witnesses.
- Nuncupative will : the will declared or dictated orally. Validity is restricted to special situations, i.e. a death bed or last illness declaration, sufficient number of witnesses, clear intention and does not involve real property.
- Unsolemn will: a will in which no executor is named, thus the court must appoint an administrator.
- Will Book: the book in which the will is recorded, i.e. copied.
Guides to using probate records
Some things to keep in mind:
- Probate is covered by state law; in most cases falling under the juridiction of the county courts.
- Not every estate was probated, especially if no real property (land) was involved.
- Probates did not necessarily take place soon after the death; it could be done many years later.
- In early wills, don't assume an uneven distribution amongst the children implies favortism; it is more likely a reflection of what has already been distributed as the children entered adulthood, leaving what must be distributed after death.
- The probate of a brother or sister who never married or had no children, will often give information about all his siblings and sometimes the children of those siblings (nieces and nephews).
- IMPORTANT NOTE: When obtaining the record from the courthouse, get the complete packet or jacket in which all the papers reside. If you are ordering copies, this can be expensive. Use the docket to get the packet number.
Finding Probate Records:
Original Probate Records
- Probate records reside at the county courthouse. In some instances older probate records have been transferred to archives. Usually probate records are kept by the county, although some states have created probate districts that serve as the jurisdiction.
You can request probate records from the courts.
- The name of the court with jurisdiction over probate matters varies from state to state, but most commonly it will be the Probate, Surrogate or Orphans Court or Court of the Ordinary. Sometimes it will be under the auspices of a Superior , District or County Court.
- Here is a chart showing current day courts. This chart has links to the websites of the appropriate modern day courts.
- The Family History Library has filmed many of the probate records, which can be located through the Family History Library catalog. To see if the records you want have been filmed, do a "place search" for the county, then look for the topic -- probate records and --probate records--Indexes.
- UPDATE: There are browse only probate records online now for some states.
Indexes to Probate Records
In the courts:
- A direct index is by the name of the testator; if you are very lucky, the court will have an indirect index that is by beneficiaries. This second index is not common.
- Usually if the FHL filmed the records, they also filmed the indexes. Sometimes indexes are in each volume, more commonly they are in separate volumes.
- Remember: Courthouse indexes can be tricky.
Abstracted and other published probate records
Here is an example of abstracts of probate records (Connecticut) on Google Books.
Examples of probate records:
More Links
*Cyndi's List: Wills and Probate |
