The Ins and Outs of Probate for Genealogists - Part Six - Where do I find probate documents?

Now you have decided that your ancestors were not all paupers and the residents of poor houses and just maybe, they had a few dollars or some property to leave to their heirs. Where do you go to find these genealogically valuable probate documents? But first an aside.

Genealogy as a pursuit has a checkered and somewhat notorious past. All has not been sweetness and light among those purporting to be genealogists, particularly those who promoted their services as professionals. Much of the bad side of genealogy in the past (and to some extent in the present) comes from that segment of the genealogical community that are looking for their fortunes as "lost heirs." If you would like a peek into this segment of our larger online community, I suggest a quick Google search on the following terms: "lost heirs genealogy money." This aspect of genealogy is actually a very valid and possibly profitable pursuit. Most of the world's probate laws provide that in event someone dies without heirs their estate escheats to the government. In my law practice, I actually saw this happen a couple of times over my almost forty years. I have previously posted about a particularly prominent example of a genealogist helping heirs find stolen property. Here is the previously posted videoL


If you were wondering whether genealogy had any beneficial aspects in the real world, then you should think about the good done by this one genealogist donating his time to resolving a real world problem.

Notwithstanding this excellent example of the beneficial use of genealogy, in the 1800s and into the early 1900s, many citizens of the United States paid unscrupulous genealogists large sums of money for bogus attempts to prove heirship to potentially escheated fortunes in England and elsewhere. The more honest of these so-called genealogists would take a percentage of any recovery. The less honest would take a substantial fee up front with no guarantee that any money would ever be recovered. There were just enough actual recoveries to fuel the process until what we have today in various firms specializing in lost heir recovery. This can happen, in part, because most money escheated to the state stays in a special fund for a period of time and becomes available for subsequent claims by heirs.

OK, enough of the very good, the very bad and the very gullible. For a more complete history of this aspect of genealogy, see Weil, François. Family Trees: A History of Genealogy in America. 2013.

If you have read the previous posts in this series, you probably have some vague idea that a probate action in a court generates a series of documents, pleadings filed in the court, that are still available many years after the action is terminated. With a few exceptions, these court documents seem to keep their case files indefinitely.

Coolcaesar at the English language Wikipedia [GFDL (www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/)], via Wikimedia Commons

Of course, there have been those relatively few court houses that burned to the ground, but overall, there are huge quantities of court documents stored around the world. Now, where do we go to find these documents? Well, that depends. To start, you may wish to read a Marquette Law Review article entitled, "The History of the Probate Court." Yes, beginning genealogical research in probate cases involves a steep learning curve, but the information is worth the effort. Fortunately, court probate files are one area where there is a decided movement for digitization. At this point, you should probably be aware of the Law Commons (if you are not overwhelmed at this point, you should be).

Let's just say that historically and clear up to present times, the court system has always had especially established courts or divisions of the court system to handle probate matters. In the United States, these courts are usually based in the county court system. Depending on the size of the case load in a county, the probate court may or may not be an entirely separate division. In smaller counties, probate matters are mixed in with everything else. In larger, more populous counties, probate actions may be handled by an entirely separately maintained court division. The following is a quote from the FamilySearch Research Wiki that should give you the idea that your first task in researching probate matters is to figure out which court or other entity has the records:

Probate is a function of state governments. Therefore, the laws and resulting records vary from state to state and changed over time. Probate records for many states can be found at the local county courthouse. The particular office of jurisdiction might be that of the Probate Court, the Equity Court, the Register of Wills, the County Clerk, the Circuit Court, or others. Some colonial records were kept by the town or the colony. See the wiki pages of each state for more information on pre-statehood, historical, and current probate records and jurisdictions. 

The U.S. government had jurisdiction over the probate records for Native American or Indian tribes. The Bureau of Indians Affairs had agencies responsible for regional groups of recognized tribes. The Field Office of the appropriate tribal agency kept any probate records. These are found at the National Archives branch designated to archive the records for the pertinent agency.

Here are what I would consider to be the steps in discovering probate documents.

1. Determine the date of death of an ancestor.
2. Determine the exact place of death.
3. Investigate and determine which court or other entity handled probate matters at the time and place of the ancestor's death.
4. Determine where the surviving records are stored and whether or not the records are available online in digitized format. This may involve a search in several online databases.
5. Search the court or other entity records both before and for a time period after the death of the ancestor. You may find probate actions filed years after the date of death. 

You may note that I refer to "other entities" other than the courts when I talk about probate records. This is due, in part, to the fact that in early times in America, probate records were sometimes recorded in town records (mostly in New England) and in other types of records. There really is a need to investigate the local history of probate records to determine where these records may be located. In addition, as with many other records, originals or copies of these records may be in historical societies, local and state archives and in court maintained archives around the country.

Stay tuned for the next installment. Yes, this series will go on and on. One last comment, do not ever assume that your ancestor's estate was too small to have created a probate court record.

The Ins and Outs of Probate for Genealogists - Part One - In the Beginning
The Ins and Outs of Probate for Genealogists - Part Two - Where there is a will there is a way
The Ins and Outs of Probate for Genealogists - Part Three- Understanding the Language of a Will
The Ins and Outs of Probate for Genealogists - Part Four - What is Probate?
The Ins and Outs of Probate for Genealogists - Part Five - What are Probate Procedures?