Research Your Scottish Ancestry

Robert WilbanksFamily Fortunes: Wills and Probates

by Robert M. Wilbanks IV, B.A.
Chief Genealogist & Historian, C.S.A.

One of the most popular genealogical resources are Wills and Probate records. This is the legal process by which the real and personal estate of the deceased is accounted for and distributed to the known and proven heirs. Wills and Probates existed long before the requirement to record births, deaths and marriages. Thus, at a time or place where vital records weren’t recorded, the potential is high for a great wealth of genealogically personal and family data to be drawn out of these extensive Probate court proceedings and papers.

Additionally, with proper analyzation techniques and understanding, other indirect information can be inferred and/or implied, leading to clues for further avenues of research.

In the United States, the legal process as to the distribution of a person’s estate, though similar in purpose, is significantly different from that process, and terminologies, in Scotland. Therefore, here will be discussed strictly the U.S. process. The process in Scotland will be discussed in a future article.

There are two key terms related to the Probate process in the United States. The first is “Testate”, which refers to an existing written Will left by the deceased with specific instructions as to the dispensation of the estate. The second key term is “Intestate”, which refers to the absence of a Will by the deceased. In both cases, the Probate process is initiated in Court which then appoints an executor or administrator who oversees the process of identifying all property and seeing to its distribution. During this process, heirs must be identified and located.

The existence of a Will is often the most desired in the genealogical research process. With a Will, family connections can be proven as it is stated directly by the deceased themselves. However, this isn’t always the case. Thus, researching Probate court cases beyond just the Will can be most significant and highly revealing.

Wills and Probate documents are often found to be filled with names of spouses, children, grandchildren, siblings, in-laws, neighbors, friends and more. Often the date the Will was written in conjunction with the date it goes to Probate can imply a time of death and determine a narrow research window for date of death. Also, the financial fortunes of the deceased can be determined by inventory and sale of the estate. Additionally, the inventory of tools of the trade can identify occupations, skill, business savvy and more.

Documents usually associated with Wills and Probates include bonds, petitions, accounts, inventories, administrations, orders, decrees and distributions. Occasionally, supplemental court processes, such as guardianship appointments for minors, can be found separately yet associated with the Court proceeding. And of course, disagreements can lead to lawsuits, questions as to mental state of the deceased at the time of writing the Will, and who really owned the property in question.

Probate documentIn the United States, the legal process of Wills and Probates is determined by State law, but the process occurs at the county level, at the County Courthouse. The particular office of jurisdiction can have varying names and may be called Probate Court, Equity Court, Register of Wills, etc. Wills and Probates date back to the earliest colonial period, and records that far back, and up to the present, are found and accessible through a variety of mediums, including microfilm and online. Therefore, it is incumbent upon the researcher to conduct a State-by-State, County-by-County assessment of the courts and records’ existence, availability and accessibility before proceeding with the research.

One of the unfortunate aspects of Courthouses, though, is often, particularly early on, they were constructed of wood, and stored all the relevant paper court documents. This made the Courthouse a tinderbox to fire, as well as subjected to floods, tornados and more.

Thus, frequently records were lost, creating the genealogical term “burnt counties,” referring to counties suffering great loss of records. As an example, 50% of Alabama’s county courthouses suffered a minimum of 2 fires during the history of the county. Many of Virginia’s and Georgia’s courthouses suffered extensive loss of records due to the Civil War.

However, don’t be discouraged. With Wills and Probates, the potential for reward far outweighs the effort and possibility for limited findings.

This is another of a series of articles in which I show you the basics of searching for your family history, discussing the use of family records, public records, and online resources nationally and internationally, etc. The previous articles are now available on the Genealogy Section of this website.   See “Genealogy” in the menu options at the top of the web page.