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. But 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.
Debbie Jennings
debbiej(a)iquest.net
"Following the footprints through time"
Researching in IN,KY,TN,NC,PA,NJ,VT,NY,MA,MD,
VA,CAN,GER,ENG