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County Courthouse Records: Probate

The majority of your ancestor's interactions with the government took place at a county courthouse. A county courthouse may also be the site of several different courts, as well as the office of Registrar, County Clerk, and Tax Collector. Courthouse records vary in organization, content, and jurisdiction depending on location and time period. Some court records have been microfilmed and some are stored in central locations such as a state archive or library, but the bulk of these important records are still held in the county which created them. The records most commonly used by genealogists are: deeds, marriages, tax lists, and probate records. In addition to these transactions, your ancestor may appear on jury lists, as plaintiff, defendant, or witness in civil or criminal lawsuits, and in divorce court. The subject of this class is the probate, or administration, procedure and the records created thereby.

The Purpose of Probate

Probate is a legal process and exists to:

To maintain the chain of ownership, an executor or administrator is considered a legal substitute for the decedent, and is appointed by the court, or by the will of the decedent. A guardian may be appointed by the court to protect the interests of a minor or an individual judged by the court to be incompetent. Courts that handle probate appear under many names: Surrogate Court, Probate Court, or Orphan's Court, for example.

Records of this transfer of property may appear in any of the following record types: probate files, land partitions, civil lawsuits, and land transfers. Each court maintains its own system of record keeping; and you should be aware that these records are not always grouped together in a form convenient for genealogists. In addition to searching probate record books and estate files, you should search judgment books, order books, will books, administration books, inventory records, guardian books, and court minutes. Then search for evidence of real property transfer in partition dockets and land records.

The Probate Process

Too often, beginning genealogists simply search for an ancestor's will and if it is not found, assume that there are no estate records. But a will is a very small part of the probate procedure, or more properly, the transfer of property, both real and personal, after death of the owner. Three other considerations exist that may explain why no will is found. First, a significant percentage of decedents were intestate, i.e. died without a will. This percentage varies depending on time period and location, but it's never been insignificant. Second, laws determined the minimum value of estates that had to pass through the probate process. Your ancestor may have died without real property and with so little personal property that no court action was required. Third, laws once existed that prohibited a married woman from devising property. Although you should search for them, don't expect to find wills written by your female ancestors. Court administration of a probate case will vary, depending upon the presence of a will (testate) or its absence (intestate); but the actions that occur between the time of death of an individual and the distribution of his or her estate are similar.

  1. The probate procedure begins with the petition to administer the estate. In the case of intestacy, this petition will list all proposed heirs and will conclude with a request for letters of authority to administer the estate. If the decedent had a will, that will is admitted to probate, and the executor or executrix named therein requests the issue of letters testamentary. These petitions are part of the probate or estate file and may also be entered in probate books or clerk's records.
  2. The court then holds a hearing on the petition. These records will be found in the Court Minutes. They are usually not found in the estate file. These proceedings will include a reading of the will and may include such things as subpoenas for witnesses. Any objections to the will are filed at this time and anyone wishing to contest the will appears at this hearing. Contested wills may also give rise to civil lawsuits. These records may be found in the Court of Common Pleas or the Circuit Court records, rather than the records of the Probate Court. If the executor cannot or will not serve, the court will appoint an administrator. If necessary, the court may also provide a guardian for a minor or incompetent. A final decision is made by the court as to the validity of the will. If the will is declared void, the estate will be distributed according to the laws for distribution of intestate property.
  3. Unless specifically waived in the will, an executor must post a bond, as does the administrator of an estate. The sureties for this bond are usually family members or close friends, so the relationship of the surety should be determined.
  4. The court next issues letters testamentary to the executor or letters of administration to the administrator and administration will proceed. The following documents are found in a typical estate administration case.
    1. Inventory and appraisal of all property filed in court. The real and personal property may be inventoried separately. The inventory will give a good picture of an ancestor's life style. If you are tracing the lives of slaves, they will appear in this inventory. People appointed to perform the inventory may be relatives, but are disinterested in the dispersal of the property. The original inventory is usually found in the estate file, but a copy may appear in the Inventory Records or other clerk's book.
    2. Creditors claims. These usually appear in the estate file.
    3. Interim accounts, filed yearly if the estate is not settled within one year. These are usually part of the estate file, but will also appear in the Probate Court minutes.
    4. Sales of real and personal property. Originals appear in the estate file; notices appear in the local newspaper; copies usually appear in court minutes or Probate Record books.
    5. Determination of widow's rights. Originals in estate file; copy may appear in Probate Record books.
    6. Guardians for minors. Originals may be found in estate file; hearing in court minutes; copy in Guardianship Records. Note that the guardian should provide annual financial accounts of his transactions on behalf of the guardian. Search these records for marriage of a minor and final accounting of the guardian.
    7. Bond changes, resignations, revocations, etc. Originals in estate file.
  5. The executor or administrator must post a notice, as prescribed by law, notifying all persons interested in the estate before the final settlement occurs. Notices must also be posted before any property is sold.
  6. A final settlement is the statement of the administrator or executor of all he has done and includes the financial accounting. In the case of an intestate administration, the final settlement will also include a determination of heirs. This statement requests that the court approve his actions and discharge him from all liability. The court will then issue the decree of distribution of an estate to the beneficiaries named in the will or to all heirs in the case of intestacy. Originals are found in the estate file; copies in the Probate Record Book or Administrations Book; also search court minutes.

The study of the records created by probate or estate administration is essential to the family historian. As with all sources, study the probate records of your ancestor and his or her siblings. You will also find it useful to expand this search to include neighbors.

Finding Your Ancestor's Estate Record

Probate usually occurred in the decedent's county of residence at the time of death. Additional documents may be found in counties in which the decedent held real property. (In the New England states, a probate district had jurisdiction, not the county court, although the two may overlap.) To find probate records, examine the holdings of the relevant courts and conduct a survey of derivative sources.


Finding Probate Information

The online exercise, "Finding Probate Information," can be reached through the red question mark to the left. Follow along, or insert your own geographic area of interest. A summary of the basic steps follows here.