Introduction to Red Book: Probate Records
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This entry was originally written by Alice Eichholz, Ph.D., CG for Red Book: American State, County, and Town Sources.
Depending on the state, various courts or districts were responsible for recording the disposition of property after the death of its owner, whether by will (testate) or without one (intestate). Probate records might show not only dispositions of estates but also guardianships, adoptions, name changes, and other functions that they served as well. This section will provide an understanding of peculiarities in probate for that state, the title and location of the governmental agency responsible in the area, and an understanding of the changing boundaries of jurisdiction.
While probate records produce some of the most definitive information for genealogical research, not everyone had the disposition of his or her property documented in probate records. When an estate is probated, there are usually two kinds of materials generated by the proceedings. The clerk enters specific documents in the probate record book or volume. However, many of the original “loose” papers pertaining to the proceedings are not entered into the probate book. Some are only kept in an estate file or packet, separate from the record books. Included in estate files might be the original will with the signatures of the testator and witnesses, creditors and legatee receipts for payments from the estate, and petitions from guardians. Availability of both probate record books and packet files or “loose” papers is reported in this section when they are applicable for a state.
Understanding probate terminology is an important aspect of using probate material. A testate estate is any estate with a valid will; in general, valid wills conform to current estate law, name one or more executors, and are properly witnessed. An intestate estate is an estate without a valid will; a technically invalid will may be used as a guide to property division in an intestate estate. Executors conduct testate estates, and administrators are appointed by the probate court for intestate estates.
Common law rules of descent still generally apply today, although each state (and colony) modified them by their own laws. Two important principles during the colonial period were primogeniture and the right of dower. Primogeniture, although only applied in certain colonies, was a procedure by which an estate was given to the eldest son, by right of birth. The right of dower provided a woman a portion of her deceased husband’s real estate for the remainder of her natural life; the dower was generally one-third. Widows also had a dower right to their late husbands’ personal property; once again, the dower was generally one-third, but sometimes there was an equal division with all of the surviving children. Most states provide somewhat differently for widows today. Two publications that discuss the legal process of probate are Val D. Greenwood, ed., The Researcher’s Guide to American Genealogy, 3d ed. (Baltimore: Genealogical Publishing Co., 2000); and Arlene H. Eakle, “Research in Court Records,” in Szucs and Luebking, The Source: A Guidebook of American Genealogy, rev. ed. (Salt Lake City: Ancestry, Inc., 1997).