Probate records

Main contributor: Paul Howes

Probate records are those which arise from the process of dealing with a deceased person’s property and possessions.

This article refers to documents arising from this process and where they can be found. Note that there will be substantial cultural and consequent legal differences across jurisdictions and over time within the same jurisdiction.

Overall process

For many, the process starts before death, with a person stating their final wishes through a written will. The person is called the testator, or testatrix if female.

After death, the will is found and presented to the appropriate body, often a court, by the executor(s) with a death certificate and an application to administer the estate.

The court approves the grant of probate and the executor then proceeds to collect and value assets, pay any debts due, including any fees and taxes, and winds up the estate in accordance with the will.

Two important linked points are worth noting here. First, if a person dies without having made a will, but they had material assets, a relative will approach the court and ask to be named administrator of the estate. The court will then grant letters of administration. Second, there will likely be ‘de minimis’ provisions in the law. So if a person dies with no will and very few assets, the property can be divided by their relatives without going through a formal process. If this is the case, there will be no probate records at all.

Wills

Usually, a will contains:

A statement that the person is of sound mind and aware of what they are doing
The details of the bequests to named people or institutions, outlining any relevant contingencies, such as their still being alive to inherit.
What happens to any residue left after the specific bequests are distributed
The name of one or more executors
The date and place of the Will
The testator’s signature
Signatures of two or more witnesses, perhaps with their addresses

Consider that John Smith may leave a bequest to his daughter, Margaret Brown. For older wills, before formal systems of birth registration or census records, this may be the first clue to be found of children or other relatives. For minor children, a guardian might be named.

Wills are public documents. Usually they will be held in the jurisdiction of the body granting probate.

Formal probate records

Because wills are public documents, they are open to inspection and/or copying, often after payment of a fee. The relevant body will likely have an index allowing the record to be found easily. Such indexes are often called calendars.

A calendar may contain just the name, a year, and a reference number, perhaps the page in a book where the wills are recorded, such as one finds in county courthouses in the US, or it may be published in book form with more detail. For example, English and Welsh's calendars have been digitized – see England & Wales, Index of Wills and Probates, 1853-1943.

Each record typically contains:

The name of the deceased
The date of death
Their address
The place of death, if different
The date and place of the grant of probate
The name and occupation of the executor(s) and their relationship to the deceased
The size of the estate

If desired, the original will can then be ordered from the national probate registry for a nominal fee, currently £1.50 – see link below.

Older English and Welsh wills were proved by courts of the Church of England. The wealthiest individuals’ wills were generally proved by the Archdiocese of Canterbury or York. The Canterbury willsare reproduced online on MyHeritage. Most wills were proved in the local diocese. Records can be seen in the relevant local County record office.

Death taxes

Some jurisdictions levy taxes on estates. While in modern situations, taxes are a private matter, in some older cases records have been made public. For example, an index to UK Death Duty Registers 1796-1811 is available online. The original registers are downloadable from the National Archives via a link from MyHeritage. These cover locally proved wills and show:

The date and place of Probate and the size of the estate
The name, residence and occupation of the testator
The names and residences of the executors, and their relationship to the deceased
A summary of the main points of the will.

Inventories

One of the executor’s roles is to make an inventory of the deceased’s possessions. Such inventories can be very detailed but very revealing of the social times in which the deceased person lived. Not all inventories survive. Where found they may be attached to tax records, the local probate records, in the records of the executors or their legal advisors.

Probate court records

The most comprehensive probate court records to be found anywhere are those in the US, where many records survive from the colonial era. In addition to the basic will and probate records there will frequently be confirmatory statements from witnesses, reviews of executors’ process, inventories, valuations of effects, guardianship decisions over minor children, and so on. Record locations vary from local county courthouses to state archives.

Notices to creditors

Executors must ensure a deceased’s debts are paid. One way to do this is to place a notice in a local newspaper or national gazette advising creditors to submit their accounts to the executors by a certain date.

Court disputes

Wills can occasionally be challenged in an equity or chancery court. In such cases there are likely to be court records and/or newspaper articles concerning the case. Such records are kept at national or state level.

Notable estates

Newspapers often carried small articles concerning the size of larger estates of people in their coverage area.

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Contributors

Main contributor: Paul Howes

Additional contributor: Don Elliott