Wills and probate records

Testate or intestate: two kinds of files

If the person left a valid will, they died testate. The will names an executor, the person trusted to carry out its instructions. The court checks that the will is genuine, usually by hearing from the witnesses who watched it being signed, and then issues letters testamentary, which give the executor authority to act.

If there was no will, the person died intestate. The court appoints an administrator, often the widow, an adult son, or a large creditor, and issues letters of administration. State law, not the dead person's wishes, then decides who inherits. Intestate files can be even more useful than wills, because the court had to identify every legal heir by name, sometimes including grandchildren whose parent had already died.

What is in a probate packet

A full probate file, sometimes called an estate packet or loose papers, may hold the will itself, petitions to the court, bonds signed by the executor or administrator and their sureties, an inventory of everything the person owned, an appraisement giving values, lists of debts paid and owed, receipts signed by heirs, and a final account or distribution.

Most courts also copied the key documents into bound record books: will books, inventory books, order books, and minute books. The bound copy is the official record, but the loose papers can include originals with real signatures, letters from family members, and petitions that never made it into the books. If you find a will book entry, ask whether the loose packet survives too.

Other papers may follow: a widow's petition for dower, which was her life right to part of her husband's land, usually one third and often called the widow's third; guardian bonds for underage children; and petitions to divide or sell land among the heirs. Each of these can name relatives the will left out.

Reading the will itself

Old wills follow a familiar shape. They begin with a religious preamble, commending the soul to God, which tells you little about the person's faith because clerks used set phrases. Next come the gifts, usually each starting with the word Item. Then the naming of executors, the signature or mark, and the witnesses.

Pay attention to the verbs. Land is usually devised and personal property bequeathed, so a phrase like I give, devise and bequeath covers both. A small gift such as one shilling or one dollar to a child is not proof of a quarrel. The child may already have received a share, perhaps land at marriage, so look for earlier deeds of gift before drawing conclusions.

Watch the order and wording of names. My daughter Mary Jones tells you Mary had married someone named Jones. My late wife means she had died. A codicil, added later at the end, changes part of the will and may record a new grandchild or a death in the family. If the testator signed with an X described as his mark, he may not have been able to write, or he may simply have been too ill to sign.

Clerks abbreviated freely. Exr. means executor, admr. means administrator, and dec'd means deceased. In a court entry, the estate of Jno. Smith, dec'd, with Wm. Smith, admr., tells you William was appointed to settle John's estate, and William was often a son or brother.

Inventories: a walk through the house

The inventory is a list of everything the person owned, room by room or item by item, made by neighbors appointed by the court. It shows how your ancestors actually lived: how many beds, what tools, whether there were books, a spinning wheel, a loom, or livestock. A Bible listed by itself sometimes still survives in the family with births written inside.

Before slavery ended, enslaved people were treated by law as property, so wills, inventories, and estate divisions in slaveholding families often list them, sometimes by name. For descendants of the enslaved, these entries can be among the very few written records of their ancestors, and they are worth reading with care and respect.

Dates that matter

A will has two important dates: the day it was written and the day it was proved in court. The person died somewhere between the two, and usually just before the probate date. If a will was written years before it was proved, family circumstances may have changed in between, so a child named in the will may have died before the parent.

Estates could stay open for years, especially when there were minor children or land to divide. Follow the case through the court's order books until the final settlement, which may name married daughters and their husbands for the first time.