Genealogical information in the probate process -- testate inheritance

Some of the most valuable documents for genealogy are wills and the documents related to the legal process of administering a person's property after their death. This process is called probate. If the deceased wrote a valid will, probate is termed testate; if not, it is intestate. Probate occurs in order to provide an orderly and fair process to transfer property to the heirs of the deceased. A will guides this process, but lacking a will, transfer is guided by probate law. I will consider general information and wills in this column and intestate probate in the next.

Whether testate or intestate, documents generated by probate often contain substantial information about the deceased and their relations. Documents may mention death date, or one can extrapolate the approximate death date with caution. Direct information on heirs and their connection to the deceased are prominent. Names of friends, associates, other relatives and neighbors appear in lists of property appraisers, creditors and debtors, bondsmen, estate administrators and buyers at sales of property.

Researchers can deduce the occupation and economic status of the deceased from property inventories. Indeed, the absence of probate for people who died in their prime sometimes suggests lower economic status. If other family members died during the probate process, records of probate may contain their death dates. Medical treatment information appears in the form of doctor's bills, and this can include similar information for enslaved people and other family members. Finally, original signatures appear on documents in probate files. Keep in mind that any signatures on documents recorded in record books, however, are likely those of the clerk, and not the deceased or others.

Information specific to wills includes mention of heirs and usually their relationship to the testator (deceased). Their names, spouses and places of residence may be included. Names may or may not be mentioned in birth order, so use caution. Researchers can infer approximate ages of heirs if the testator name guardians for children in the will (under age 18 for daughters, under 21 for sons, typically). Former residences of the testator may be mentioned or inferred if they owned property in another locale. The testator may designate names of enslaved persons and their destinations (to an heir or for sale).

Interpretation of documents related to inheritance requires knowing the law for the time and location where probate occurred. Most laws related to probate are state laws, although researchers may find the terminology involved in any law dictionary. State laws for various time periods are accessible for most states online, often as historical documents on sites such as Hathitrust, Internet Archive or Google Books. Knowing the law allows one to explain documents in probate files and events during the course of probate.

Most states have probate records at the county level, although in some cases older documents may be at state archives. Probate records may be housed in will books (containing transcribed copies of wills and associated papers), probate court minute books, books recording different portions of probate (administrative bonds, inventories, settlements, etc.), indices (usually by the deceased's name or name of the administrator) and court records for legal actions related to an estate. Many of these books in digitized form are on subscription services or Family Search, or are microfilmed and available in state and local archives.

Probating a will follows several mandated steps under the laws of most states. First, the testator writes the will in front of witnesses, professing to be of sound mind, of legal age and not under undue influence, and names one or more individuals to execute its provisions. After the testator dies, the administrator presents the will in court, which "proves" it, that is, certifies it as valid. The court issues Letters Testamentary to the executor. The executor(x) then publish a notice to creditors and debtors of the estate in a local newspaper, and the process continues as it would for intestate inheritance.

Will and probate records do have limitations. Wills may fail to mention all heirs in the cases of disinheritance or when some children had already been gifted property. (The idea that all heirs had to be included for a will to be valid is incorrect.) The testator may fail to disperse all property in the will, indicating the researcher may need to search elsewhere. The date of writing may precede the proving date by many years if the testator lived longer than anticipated. Wills may be missing, although usually copies are in will books.