South Carolina Probate Records
This entry was originally written by Johni Cerny and Gareth L. Mark for Red Book: American State, County, and Town Sources.
Under the law of primogeniture during the colonial period the eldest living son, called the heir at law, inherited all of the land when the father died intestate (without leaving a will). If a will had been written, its content determined who would inherit. If there were no male heirs, all female heirs shared the land equally. South Carolina abolished primogeniture with a law that became effective on 1 May 1791. That law stated “If the intestate shall leave a widow and one or more children, the widow shall take one-third of the said estate, and the remainder shall be divided between the children, if more than one, but if only one, the remainder shall be vested in that one forever.”
The division of intestate estates during the colonial period was based on an English statute of 1670, formally adopted into South Carolina law in 1712. The division of the estate after payment of all just debts and expenses was as follows: the widow, if any, received one-third of all real estate for life; the heir-at-law (eldest son) received the title to all real estate, including the widow’s dower, which he inherited at her death; the widow received one-third of the personal property, and the children shared equally in the other two-thirds. If there were no widow, the children shared the personal property equally. If there were no children, the widow received one-half of the estate, and the other half was divided equally among the siblings of the deceased. Any property, real or personal, that was not bequeathed or devised in a valid will was divided according to the law.
Initially, the governor and the Grand Council were the only court of ordinary (probate) in the province; the secretary of the province also began functioning as a court of ordinary by 1692 (see South Carolina Court Records). See Caroline T. Moore and Agatha Aimar Simmons, Abstracts of the Wills of State of South Carolina, 1670–1800, 4 vols. (Columbia, S.C.: R. L. Bryan, 1960–74); Caroline T. Moore, comp., Records of the Secretary of the Province of South Carolina, 1692–1721 (Columbia, S.C.: R. L. Bryan, 1978); Brent Howard Holcomb, comp., Probate Records of South Carolina, 3 vols. (Easley, S.C.: Southern Historical Press, 1977); and Alexander S. Salley, Jr., “Abstracts from the Records, Court of Ordinary (Probate),” in South Carolina Historical and Genealogical Magazine, 8–13 (1907–12).
In 1781, the seven circuit court districts (see South Carolina County/District Resources) were given courts of ordinary, but the only surviving records are those of Camden, Charleston, and Ninety-Six Districts. See Brent Howard Holcomb and Elmer O. Parker, comps., Old Camden District Wills and Administrations, 1781–1787 (Easley, S.C.: Southern Historical Press, 1981); Brent Howard Holcomb, comps., Ninety-Six District Journal of the Court of Ordinary, Inventory Book, Will Book, 1781–1786 (Easley, S.C.: Southern Historical Press, 1978); and Pauline Young, comp., Abstracts of Old Ninety-Six and Abbeville District: Wills, Bonds, Administrations, 1774–1860 (1950; reprint, Easley, S.C.: Southern Historical Press, 1977).
In 1785, the circuit court districts were subdivided into counties; courts of ordinary were established in functioning counties beginning in 1787. During the fifteen years that counties in circuit court districts existed, probate actions could be conducted in the courts of ordinary in both the county and its circuit court district. When the counties and districts were replaced by twenty-five districts (counties) in 1800, courts of ordinary were established in each district. Probate records from 1800 to the present and records of the counties and circuit court districts from 1785 to 1800 are found in the county’s judge of probate office. See Martha Lou Houston, comp., Indexes to the County Wills of South Carolina (1939; reprint, Baltimore: Genealogical Publishing Co., 2003); and Charleston Free Library, Index to the Wills of Charleston County, South Carolina, 1671–1868 (Baltimore: Genealogical Publishing Co., 1993); and Pauline Young, comp., A Genealogical Collection of South Carolina Wills and Records, 2 vols. (1955; reprint, Easley, S.C.: Southern Historical Press, 1984).
Many probate records are among the records of the equity court. Established in 1791 and mostly disbanded by 1821, the equity courts handled partitions of property, among other probate actions (see South Carolina Court Records). Maps illustrating the equity court districts are found with a brief explanation of the equity court records in Brent Howard Holcomb, “South Carolina Equity Records,” The South Carolina Magazine of Ancestral Research, 6 (1978): 235-38.
Probate documents created by county, equity and other courts have been microfilmed and can be searched at the Department of Archives and History in Charleston and the FHL and its various branches. See www.state.sc.us/scdah/guide/ctyguide.htm for a list of all county records available at the South Carolina Department of Archives and History.