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Wills and Probate Records

Last week's lesson provided an overview to courthouse records for genealogical research. My example was of a step-great-grandfather's will mentioning heirs by name. This is perhaps the main reason we hope to unearth the wills of our elusive ancestors - the confirmation of familial relationship signed and sealed by the testator.

Many have written to say their ancestors were lowly farmers, obviously of humble means, and that there would have been no need for a will. In that case, you can bet he owed someone some money when he died! His estate most certainly went through probate. I think of probate as a general reckoning of what money is owed, how much is available after the funeral expenses, and who gets what in the final analysis.

It might help to understand that probate records might be available on your "poor" ancestors if you realize that seemingly insignificant items like belt buckles, a linen shirt and a wooden bucket are items of value mentioned in colonial wills and probate records.  During that period, the average man probably owned one good pair of pants and two linen shirts. It took months to grow the flax to weave the linen and to sew the shirt. Remember that even with the arrival of the industrial age in the mid 1800s, the majority of people had only a few pieces of clothing.

The grandiose wealth of post-WWII United States is not the financial norm from a historical perspective. Of course, if your 17th-19th century ancestor was highly-placed socially, more than likely much has already been done on his family history, including the discovery of his will and distribution of assets. Alas, the rest of us must scurry for meager clues from whatever obscure records have withstood the ravages of time. Inheritable items might include: feather beds, wagon box, pick axes, spectacles, shoes, a leather strap, 1 milking cow, two silver spoons, a quilt, an overcoat, and a book of poems.

Indeed land, cattle, horses, even slaves changed hands on the death of the father, brother or uncle. Its interesting to note that the idea of an estate passing to wives is a relatively new legal concept. Late 20th century customs often dictate that the wife obtains at least half of the estate. Women did not have the right to own property in many societies of the past. Indeed, if she were to inherit property, it often became the possession of her husband on their marriage. He could dispense with the inheritance as he willed without consulting her. Amazingly archaic? Is my prejudice is showing?

A few will & probate terms

abstract a listing where an indexer withdraws what he considers essential information, naming more than just the testator and the date. Not to be confused with a transcribed will.
administrators  a court appointed individual who distributes the assets among the heirs where no will has been stipulated.  Usually next of kin.
advertisements a tool employed to locate "all of my children" in determining legal heirs, usually found in newspapers.
beneficiaries those who are named in the will or insurance policy to receive proceeds.  Relationships may or may not be stipulated.  See in particular Helen Leary's discussion of clues from percentage of monies received, listed below in For Further Reading.
calendar a summary which lists the deceased by name, date of death, date & locality where will was proved, executors or administrators and value of estate
codicil an addendum to a will.
executor individual(s) appointed by the testator to see that the requests in the will are carried out.
guardianships surviving minor children are given a legal representative, usually in another court.
holographic will a handwritten will
joint will made by at least two people
intestate estate where a person dies without a will
inventory a listing of the assets of the deceased including personal property, real estate, account books, cash, stocks & bonds.
letters of administration list deceased's name, address, occupation, date of death, locality, value of estate; also name, address and relationship of administrator.
nuncupative will where the testator dictated his will orally.
probate a reckoning of debts and assets where the estate goes through a legal accounting of who is to receive proceeds from an estate of a deceased individual.
testate estate where the individual dies with a will.
testator the individual whose "taking out" the will.
transcription a word for word write up of the exact contents of a will.  Refer to the original will because there can be errors due to interpretation of handwriting and the age of the document.
wills not proved where the will was not located or presented to the court after the death of the testator.  Some may have been replaced by a subsequent will.
witnesses those who sign/swear that the will is the true testament of the testator.  These are often family or migration cluster group members, so be sure to take note.

Other documents you may encounter are petitions for probate, nominations of guardianship, guardian bonds, appraisals, notice to heirs, notice to creditors, conservator accounts, settlement papers, ledgers, orders of distribution, estate taxes.

Reviewing wills and probate proceedings from local courthouse records provide obvious clues to family relationships. There might possibly be clues to towns of origin in the old country. If money is sent back to a distant cousin who lives in a tiny section of London, you'd best begin to search for other family members in that local!

Look at a good bibliography of genealogy reference works for your ancestor's locality to determine what indexes or abstracts of wills are in printed form. PERSI (Periodical Source Index) is a great reference for finding even obscure genealogical society publications of indexes and abstracts. Either way, you'll need to obtain a copy of the original documents to avoid possible transcription errors.

If your are lucky, you can obtain a copy of probate records via microfilm, perhaps through the LDS Family History Library Catalog, available now online at: http://www.familysearch.org
(click the custom search tab to locate the FHLC)

US researchers may check Everton's Handybook for Genealogists or Ancestry's Redbook to see which court has jurisdiction in each county, and the time period when wills and probate records began to be kept. Write to courthouses only when all other avenues of research into wills and probate records have been exhausted.

Neglecting to look at wills and probate records means you'd miss out on this little peek into history! You'll learn more about your ancestor's daily life in his will, oddly enough, by seeing what he considered valuable inheritable implements and property. Don't think that he/she preferred the eldest son because he inherited the family estate. It might have been the prevailing process at the time.

Then again, you might find an interesting entry where an heir received $1 compared to millions left to a sibling. 

Daily Genealogy Columnist
America Online Keyword: roots or myrtle

For Further Reading:

Eakle, Arlene H. Chapter 7 "Research in Court Records" The Source: A Guidebook of American Genealogy, revised edition. Loretto Dennis Szucs & Sandra Hargreaves Luebking, editors.  Salt Lake City: Ancestry. 1997.  ISBN 0-916489-67-1.

Greenwood, Val D.  Chapter 14 "What About Wills" and Chapter 15 - "The Intestate - Miscellaneous Probate Records - Guardianships."  The Researcher's Guide to American Genealogy. 2nd edition. Baltimore: Genealogical Publishing Company. 1990.

Herber, Mark D. Chapter 12 "Wills & Administrations" Ancestral Trails: The Complete Guide to British Genealogy and Family History. US Publisher: Baltimore: Genealogical Publishing Company. 1998.

Leary, Helen F. North Carolina Research.  Second edition. North Carolina Genealogical Society: 1996. ISBN 0-936370-10-6.  See also my book review of same: http://members.aol.com/dearmyrtle/99/990209.htm

Schaefer, Christina K.  The Hidden Half of the Family: A Sourcebook for Women's Genealogy. Baltimore: Genealogical Publishing Company. 1999.  ISBN 0-8063-1582-2. Note that each state's evolution of laws regarding property & inheritance are presented.


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