When a person dies, every state has laws that provide for public supervision over the estate that is left, whether or not there is a will. The term "probate records" broadly covers all the records produced by these laws, although, strictly speaking, "probate" applies only when there is a will.

Family history researchers often turn to probate records only after they have exhausted everything else they can find. Sometimes an earlier look at probate records would greatly shorten their search.

Probate is a minor judicial procedure to prove that a will is valid. Traditionally, it required the witnesses to a will to appear before the probate officer and swear that they saw the deceased sign it, and that he or she was mentally competent and under no duress at the time. More recently, the witnesses have been allowed to sign affidavits (sworn written statements) to those facts at the time the will is signed, and probate requires only that the affidavits be filed with the will.

The maker of a will is formally called a "testator," but "decedent" or "deceased" are also used to refer to the original owner of an estate, whether or not there was a will. The official responsible for probate is known by different titles in each state, and the records are found in the office of the responsible official. The titles include probate judge; surrogate, county, circuit or district judge; register of wills; and county or town clerk.

In England during the American colonial period, probate was a function of the ecclesiastical courts of the bishops of the Church of England. In the colonies, there were no bishops, and some colonies had established churches other than the Church of England. Therefore, each colony developed its own civil procedure for proving wills, leading to the present variety of offices.

If someone dies, leaving a will that names the person who is to administer it-pay the bills, collect debts owed, and distribute the proceeds-that person is called an "executor" (masculine) or "executrix" (feminine). The terms are from law Latin, which , unlike English, did not use the masculine form as an inclusive gender applicable to both men and women.

A person who dies without a valid will is called "intestate," and the property of an intestate estate goes to surviving relatives according to formulas set by the law of each jurisdiction. When someone dies intestate, or for some reason a named executor or executrix cannot serve, the probate officer appoints a personal representative, traditionally called an "administrator" or "adminstratrix," to represent the estate. Today, some jurisdictions use the gender-neutral term "personal representative" as the title for the position as well as to describe it.

"Personal" in the term emphasizes that the representation is for only personal property-movable items, cash, accounts receivable, and securities. Interests in real estate go directly to the heirs without passing through the hands of the personal representative, with two exceptions: when the will directs that the property be sold, or a court orders its sale to meet debts of the estate. When real estate passes to heirs as a group, they are the decedent's "real (property) representatives," and tax records may list the landowner as "estate of" or "representatives of" the decedent.

Partition is the process of dividing land among people who owned it as a group-jointly or in common-and it too is subject to judicial approval, but sometimes by a court other than the probate office.

A caution you should always keep in mind is that some probate records, like those copied into bound will-record books, are transcriptions from the originals. Published compilations or abstracts are available for many states, especially before 1800, but these are two times further removed from the original, once when they were copied or abstracted, and a second time when they were set in type. Each recopying introduces a chance of error.

I found an example in searching the published New York Historical Society's Abstracts of Wills for a father and son both named Abraham de Revier. At least one was literate, because the clerk who in 1715 began the first record book of the Old Dutch Church at Sleepy Hollow, Tarrytown, New York, credits Abraham de Revier with keeping the memoranda and membership lists he used to compile the church's earlier history.

I didn't find that name, but the index did list an Abraham de Reinere that was too close to ignore. The abstract showed a will dated 24 April 1716 and proved 22 June 1716, listing "children Hannah and Mary by my first wife and John, Rachel, Letitia and Isaac by my second wife." It appeared to belong to Abraham Jr., since Abraham Sr. had only one known child, and the listed children partially matched known children of Abraham Jr. The accuracy of the abstract transcription was suspect from the start, however, because it listed, in place of Sophia/Zophya and Janitje, who were known from church records, a Letitia and Isaac who appear nowhere else. There was no indication of how the will was signed (NY Wills 2:171).

Both the handwritten will record books and the original wills are available on LDS Family History Library microfilms. The will book transcribed the name as Abraham Dekeinere (Liber 8:490, noted as copied from Old Liber: 419, FHL Microfilm 874,517). When I went to the original wills, the source for the error in the published abstracts was immediately apparent-DeReinere was the misread name on the jacket in which the will was filed, but the name in the will was plainly "DeReivere."

The will itself, however, was that of Abraham de Reivere Sr. Unlike the "my" for the first and second wives in the abstract, it lists children Hana and Mary "by his first wife," although there is no antecedent to which this refers, and then "by the second wife" John, Rachel, Safia, and Jane. Even more telling was this tidbit omitted from the abstract: "and as for my dofter-in-law she have had what she is to have." It was signed with an X, showing that he himself could not write, and explaining the difference from the spelling of the name in his literate son's memoranda, as copied into the church records (Will 530, FHL Film 501144; Rev. David Hall, translator. First Record Book of the Old Dutch Church of Sleepy Hollow Yonkers, N.Y.: Yonkers Historical and Library Assn., 1901, reprinted Rhinebeck, N.Y.: Palatine Transcripts, 19867). Later the death of Abraham Jr. before 1716 was confirmed by a newly discovered family record showing his widow's remarriage by 1712. (N.Y. Geneal. & Biog. Rec. 112 (July 1989):134).

Despite the perils of relying on published abstracts, they have one great advantage-an every-name index to all the people mentioned. The probate court indexes seldom list anyone but the decedents, or sometimes minor children for whom formal guardianships were established. It is this lack of complete indexing that probably deters many family historians from making greater use of probate records. Without any every-name index, you must first have the names of ancestors before you can use their probate records.

Other than the will and affidavits of the witnesses, probate records may include the petition of the proposed personal representative, inventories, accountings of receipts and disbursements, and distribution lists. In more recent years, you may find a death certificate (perhaps unobtainable from a vital records office under new restrictive policies). You should check everything that is available. Some probate records, in addition to wills, may have been copied into will-record books, but in other jurisdictions they will remain as loose papers in probate files or packets.

Each type of probate record offers different insights about the relatives, economic status, and lifestyle of the deceased. The will is especially useful for the relationships it states, and for clues to unstated relationships from the identities of the witnesses, executors, and heirs. From names omitted, or included without a stated relationship, a genealogist experienced in a particular locale might make assumptions on which a hypothesis can be based, to be tested by further research, or might draw conclusions that strengthen or weaken earlier hypotheses.

Be careful, however, not to draw unwarranted conclusions from usages with which you are unfamiliar, like "son-in-law" meaning a stepson, or "my sister" meaning a member of the same religious group. The omission of a known child could mean that the person had died before the will was made, or that the child had already received its portion, like a daughter who had a dowry at marriage. The petition will usually state the date of death, which may not appear anywhere else. If it does not appear, the death date can be approximated between the date of the will and the date of probate. For appointment of an administrator, toe petition will name all those who are of the same or a closer relationship to the decedent as the proposed administrator, and show that they have renounced their rights to serve.

Inventories and accounts will tell you much about a person's economic status, occupation, and lifestyle. Distribution lists, particularly for intestate estates, can suggest previously unknown relationships that you can attempt to verify from other sources.

Probate records are often the key to opening previous dead ends in family history research. The closer you can come to viewing the original documents, the less likely that you'll be misled by other people's errors.

Donn Devine is a genealogical consultant and practicing attorney and archivist for the Catholic Diocese in Wilmington, Deleware. He is active in a number of genealogical organizations.