Author: Michael

Probate documents are one of the best primary source documents, but they’re also one of the most complicated, partly because of the dizzying array of different document types, such as:

1. Probate proceedings.
2. Bonds, letters of administration, letters testamentary, and other administrativa.
3. Inventories & bills of sale.
4. Guardianship.

In this entry, I’m going to focus on intestate proceedings, where there’s no valid will. I’ve covered wills and guardianship separately.
If you’re lucky, these proceedings will be handled by a special-purpose court, which can make records easier to find. For example, in Pennsylvania, the Orphan’s Courts handled such proceedings.

Intestate probate proceedings are both complicated and extremely valuable genealogically. The reason that intestate is complicated is that the proceeding are governed by local laws which reflected cultural mores of the time. But you won’t find explicit references to those laws in the proceedings, you’ll just see decisions that seem strange today, but were really run-of-the-mill for the time.

Let me give you an example. Colonial Pennsylvania law gave the eldest son the option to buy out his siblings’ share of his father’s real property, provided he could come up with the funds within one year.

If you didn’t know this, however, you might come to the wrong conclusion. Consider this family genealogy, which states that a Jacob Slough petitioned the court to have his father’s estate divided up. The genealogy considers this to be a significant event related to a wicked stepfather taking control of the farm, and Jacob trying to seize it back. But it wasn’t even worth mentioning, and he wasn’t asking for the property to be divided up. Jacob’s motion was just a routine procedure in intestate proceedings.

Before Jacob could buy-out his siblings’ shares of their father’s estate, the law required proof—via the testimony of twelve “disinterested” men—that the farm could not be divided into equal shares without diminishing the value of the property. Perhaps it couldn’t be partitioned because only one share had access to water, or perhaps it was because most of the acreage was uncleared, leaving each farmable parcel too small to support a family.

Anyway, that’s all that Jacob was asking: that the court follow a standard procedure outlined in Pennsylvania law to send twelve men to check out the farm and decide whether it could or could not be split up. If it couldn’t be partitioned, Jacob could buy-out his siblings’ share of their fathers’ real estate.

It’s hard to provide specific advice here, since every state will have different laws. Here’s the best rule of thumb: if something seems strange in an intestate proceeding, assume that you are the problem, and that what you’re seeing is usual.

Then search for guidance about the laws of that state to see if you can learn more. If you’re lucky, you’ll find pre-built explanations. Bob’s Genealogy Filing Cabinet is a pretty good one. But it may come down to finding an old book on worldcat and requesting it via inter-library loan. I’ve actually got a case study video that hinged on how Virginia’s intestate laws treated children born out of wedlock. Without a copy of the law, I could only speculate.

Intestate probate proceedings are going to follow some boilerplate conventions, the most important of which is that children will almost always be listed in birth order. One common exception is if the first-born son has special legal rights: in this case, he may be listed ahead of any older sisters.

Intestate proceedings may also include assignment of guardians for minor children. Pay close attention to this: many courts will note that a child was below or above a certain age. For probate proceedings taking place over many years, you can get very accurate estimates of when some of the children were born.

Intestate proceedings may also include letters of administration, bonds and an inventory. These are just administrativa, and the only genealogical value is that the people named tend to be family, friends, associates and neighbors of the deceased. Sometimes you’ll get a relationship for a single person, but that’s about it.

Letters of administration state that a given individual is the estate’s administrator, and can transact on behalf of the estate until it is settled. If there are minor children, the administrator may keep showing up in court until the youngest child reaches the age of majority.

Bonds are a financial guarantee that the administrator and or guardian won’t embezzle from the estate. If a court later found the executor guilty of financial malfeasance, the executor and another person would be held financially liable for an amount that could be higher than the estimated value of the estate, depending on the extent of the malfeasance.

Inventories are the output of an estate sale, and can come in two parts: an estimate of the value of personal items, and the actual bill of sale. These can be interesting in learning about the decedent’s possessions. The bill of sale will include family members making purchases, but they won’t be identified as such—this can be a lead for figuring out who a decedent’s daughters married.

Probate documents can be goldmines for genealogical research, but few documents are both digitized and digitally indexed, so expect to put in some real effort to find these.

In this video, I’ll cover the prep work you’ll need to do to find a repository for probate records. I’ll cover finding documents in a second video.

Short version:

1. You’ll need a probable year and place of death.
2. Check Wikipedia to see if county boundaries changed.
3. Records can be lost—check the county’s history.
4. Start with Ancestry.com, then go to FamilySearch, then get to the library.

Let’s dig into the meat of this. To get started, U.S. records are stored chronologically at the county level. You’ll need a rough idea when your ancestor died, and where. Death certificates, Find-a-grave, even census records can help.

The where can be tricky, though: county boundaries changed, especially in frontier areas, such as Ohio in the early 1800s or Pennsylvania in the 1700s. Court records remain in the original county courthouse. For example, if your ancestor died in Gettysburg, Pennsylvania in 1799, you would find a probate record in York County. If they died a year later, however, you would find the record in Adams County, which was carved out of York County in 1800. I’ve found Wikipedia is a great source for understanding how counties are partitioned over time.

Also, be aware that records may have been lost, through water damage, fire or even the ravages of war. I’ve had a lot of difficulty finding pre-1865 probate records in southern states that saw heavy fighting in the Civil War.
So, with all of that in mind, start your search on Ancestry.com or another site where probate records are digitally indexed by name of decedent.

I wish it were that easy, but it’s pretty rare when I can find what want via a digital index. The next step is to check the probate inventory on FamilySearch.org. Some probate records are digitized, though not indexed. But many aren’t, which means you need to go old school.

I’m a big fan of the library at this stage. If you’re lucky, like me, you live close to a city with a great genealogy section. If you don’t, inter-library loans can bring great libraries to your local branch.

Let’s take a glance at Family Search’s probate information for Highland County, Ohio. See those books with authors? You’ll often find a handful of books published in the last 20 to 50 years that have indices and abstracts, not just of probate, but of all sorts of county records with genealogical value.

Book links on FamilySearch will take you to worldcat.org, which is a huge database of library catalogs. Worldcat provides more than enough info to have your local library request the book via inter-library loan.

And these books are goldmines. A lot of these books will index anyone referenced in their abstract of a probate proceeding, meaning you can find probate proceedings that mention your ancestor but are centered on your ancestor’s family, friends, associates and neighbors. Ancestry.com and FamilySearch can’t do that, and that kind of information can help you break down brick walls.

Take a look at the notes I took from Records of the Recorder’s Office of Highland County, Ohio. I was looking for information about the probate proceedings for William Huggins, led by his son-in-law Thomas Chew. I expected to find the first two entries about that probate proceeding, but not the third with Nancy & Zebulon Overman. Who were they? This is a topic for another video, but that unexpected entry resulted in a complete restructuring of one branch of my wife’s family tree.

Ideally, an old book abstracting probate records will point you right back to FamilySearch.org’s digitized records, but there’s a good chance you’ll have to order a microfilm from the Family History Library. If your public library isn’t a partner with the Family History Library, you can have the microfilm sent to a nearby Mormon family history center.

Now, as a fellow who doesn’t believe in a god of miracles, a personal god, I felt a little awkward showing my face in a Mormon building. Like my preference for Einstein’s “old man” was somehow tattooed on my face. Mormon co-workers told me not to worry about it, and they were right: everyone was very welcoming. So don’t feel shy.

If you can’t find what you need via the Family History Library’s microfilms, though, you have to ask yourself how dedicated you really are, because now you have to find a repository for the probate books that contain the docs you want. Sometimes, you can order them from the county directly. Other times, a local historical society may have the documents and are set-up to help you acquire them.

But the worst case scenario—and I’ve been here—is that you have to physically visit the county courthouse to view their records. Which could be hugely expensive.

As a last resort, if you can’t make the trip, you could hire a process server. I’ve done that, but… a process server is accustomed to finding modern court documents on deadline or serving subpoenas to people who don’t want to receive them. Asking them to find a court case from the 1750s… they’ll take your money but expect to it to cost several hundred dollars. And even then, they may not be able to find what you want.

Probate documents are one of the best primary source documents, but they’re also one of the most complicated, partly because of the dizzying array of different document types, such as:

1. Wills.
2. Bonds, letters of administration, letters testamentary, and other administrativa.
3. Inventories.
4. Probate proceedings.
5. Settlement.
6. Guardianship.

In this post, I’m going to focus on testate proceedings where a person made out a will. I’ll cover guardianship and intestacy—when there’s no will—separately.

Testate probate proceedings are the most straightforward. At a minimum, you will have a last will and testament which documents how a decedent wants his (or her) property to be distributed.

Wills are fairly boilerplate—you’ll see similar language in all of them, and there are a couple conventions which are incredibly helpful for genealogy:

1) First, listing children in birth order. It’s not used all the time, but when you have no other indicators of age, assume the kids are listed by age. It can be a really useful way to narrow down searches.

2) Second, is the clarifying text listing sons-in-law, e.g. “Caroline, who is intermarried with Henry Roth.”

You may also encounter letters testamentary, bonds and an inventory. These are just administrativa, and the only genealogical value is that the people named tend to be family, friends, associates and neighbors of the deceased. Sometimes you’ll get a relationship specified for a single person, but that’s about it.

Letters testamentary state that a given individual is the estate’s executor, and can transact on behalf of the estate until it is settled. Getting this letter isn’t always necessary: in some locales, if an executor is named in a will, she has the legal authority to act on behalf of the estate. She doesn’t even need to prove the will in court to get started.

Bonds are a financial guarantee that the executor won’t embezzle from the estate. If a court later found the executor guilty of financial malfeasance, the executor and another person would be held financially liable for an amount that could be higher than the estimated value of the estate, depending on the extent of the malfeasance.

Inventories are the output of an estate sale, and can come in two parts: an estimate of the value of personal items, and the actual bill of sale. These can be interesting in learning about the decedent’s possessions. Now, the bill of sale will include family members making purchases, but they probably won’t be identified as such. This can be a lead for figuring out who a decedent’s daughters married.

Sometimes, the execution of a will can go sideways, and you’ll find a record of this in probate proceedings. For example, if the decedent’s spouse was pregnant when the decedent died, state law might render the will invalid.

Or the terms of the will might be impossible to meet, and the decedent’s family may have to sue the executor, who was probably a sibling or spouse. Even if the executor was in agreement, our adversarial court system means there must be an appellant and a respondent. I found a case where a wife had to sue her executor husband over the disposition of her father’s estate. The executor, of course, testified in court that he was in complete agreement with his wife, but she still had to sue him.

The actual court handling probate proceedings will vary state to state, and that can make it difficult to find.

The final document type you may encounter is an estate settlement. In my experience, this is the rarest type of document to find, and is typically part of probate proceedings. But it is worth calling out because of its potential high genealogical value.
If the will explicitly lists out all familial relationships, the settlement won’t matter much. If the decedent didn’t map out familial relationships, perhaps by saying “I leave my entire estate to my children, share and share alike,” a settlement is gold. “Share and share alike” means that each child gets an equal share, so even if relationships aren’t named, you will know that all the people receiving the same amount of money are siblings.

Settlements can also help when the recipient of one of the decedent’s bequests passed away. The settlement will list out the bequest and then name all the people who received it—that will be heirs of the recipient.

I had a case where this was the only way to prove lineage as there were no baptismal records, and both parents, Jacob Slough and Elizabeth Morey Slough, died without leaving any trace in probate records. But the Elizabeth’s father’s estate settlement named her and listed all of their children together. More important, the sum of the share of the estate given to her children equaled that given to Elizabeth’s siblings, proving the relationship.

In my intro video for Irish Catholic genealogy, I listed three things I try to do when connecting my Irish-American ancestors to their family in Ireland:

1. Remind myself that every name will have multiple individuals.
2. Narrow it down to one townland.
3. Find at least one more supporting fact.

Now I’m going to try to apply this to my second great grandfather, Joseph Fitzgerald. He was born in County Clare on 5 May 1828 according to his tombstone. When he married Helena Burke in Manitowoc, Wisconsin in 1855, he told County registrars that his parents were James and Catherine Fitzgerald.

It feels like that should be enough to figure out where Joseph’s parents lived. While there aren’t many Irish sources from the 1820s to the 1850s, there is Griffith’s Valuation, which recorded heads of households leasing private land. A quick search on James Fitzgerald at askaboutireland.ie yields eleven entries (excluding landholders, who were Protestant). That’s in a place that is just slightly larger than Rhode Island.

As I mentioned before, it’s critical to find your ancestor’s townland, and finding maps of townlands is much easier than you think. Just use Bing Maps. Full disclosure, I work for Microsoft, but I’m not shilling for my employer in this case. Bing maps will show you townland names. Google Maps will not.

That said, if you’re looking at Griffith’s Valuation, do your search at aksaboutireland.ie—the site will pull up a map for you.

So… where are all those James Fitzgeralds in County Clare? The red Xs in the image below.

That’s a lot of locations, but thankfully, stories passed down to my grandfather tell that James’ son was born about ten miles from Limerick, and that green band approximates five to fifteen miles from Limerick.

Now, James’ son, Joseph, married a woman from the town of Broadford, which is 12 miles from Limerick, and considering how chain migrations work—people from one village in the old country often moved to the same neighborhoods in the new world—odds are good that Joseph was from Clonlea or Kilseily townlands near Broadford.

Going great, right? I don’t necessarily even need to find a baptismal record for my Joseph around 1828. All I really need to find is one baptismal record in the right parish between say 1815 and 1840 where the parents are James and Catherine Fitzgerald and I’m golden.

Unfortunately, I can’t find such a record. The best is for the 1834 and 1843 baptisms of Patrick and Bridget respectively, born to James Fitzgerald and Catherine Halpin from Clooney townland. That’s 20 miles from Limerick, not ten. Plus, family oral history notes that James and Catherine had boys named Mike and Tom, and we’re not seeing entries for those.

So… another strategy I’ve found useful is to eliminate as many other people with the same name as I can. In other words, if I can figure out that all James Fitzgeralds from close to Limerick were not married to Catherines, then I can feel more confident about the Clooney record.

I’ve looked in a bunch of different places, however, and… no joy. I can fill in the details of some of the couples, but not for the James Fitzgeralds close to Broadford.

Why don’t I just accept this couple as my ancestors?

The James and Catherine from Clooney townland just don’t meet my rules. I don’t have records for the same fact in both the U.S. and Ireland. I don’t have a clean townland match—if I’d found something close to Broadford, I would’ve taken it. And… I have to remember all those other James Fitzgeralds.

Probate documents are one of the best primary source documents, but they’re also one of the most complicated. Where I see the most confusion, though, is understanding guardianship, especially in Colonial and early Republic probate proceedings.

If you want to dig deeper, I recommend spending some time at “Bob’s Genealogy Filing Cabinet” at genfiles.com, but here’s the quick overview. And actually, I’m going to start with a couple of quotes from that site’s Orphans & Guardians article, which really does a fantastic job of providing historical perspective.

“For most of history an orphan was a fatherless child, irrespective of whether the mother was living.”

“The guardian’s responsibility was focused on the property of the orphan [not] on the orphan himself… the primary purpose of a guardian was to provide for management of the orphan’s estate, and to use that estate for his maintenance and education… Guardianship thus had nothing to do with physical custody. Courts almost always assumed that orphaned children would live with their mother if she was alive and capable of rearing them.”

Honestly, if you can internalize that, then you can stop watching this video. You’ve got the message. Of course, I have a few things to add, along with an example of how to misinterpret guardianship.

First, pay close attention to when the courts assign guardians. Many courts will note in the record that a child was below or above a certain age. For probate proceedings taking place over many years, you can get very accurate estimates of when some of the children were born.

Second, probate was a family affair. When courts assigned guardians, they typically chose close family members to play the role. As an example, I have been struggling for three years with the role of two brothers, Thomas and Joseph Chew as the guardians chosen by Nancy Chew Overman—I can’t figure out how Nancy was related to the two men, and the widely accepted genealogy puts Thomas and Joseph as siblings to a completely different Nancy Chew, which would have made Nancy Overman a fourth or fifth cousin.

Third, realize how different education is today compared to a century ago. In 1919, only 17% of high school students graduated, which was nearly triple the rate of 1900. In 2016, 84% graduated high school.

Go back to the 1800s? High schools didn’t really even exist. Education happened in a one-room school house that ended after the eighth grade.

Go back even further to the colonial era, your education happened on the job, either from your parents or via an apprenticeship.

For example, in colonial Pennsylvania, apprenticeship was such an important educational path that a 1713 law granted the courts the explicit power to place a minor orphan into an apprenticeship or other form of employment upon the request of a guardian.

So… how not to treat guardianship. Here’s an excerpt from a genealogy of the Slough family in Pennsylvania. The story is that a wicked step-father banished his step children from their home and placed them into the care of guardians on nearby farms.

You can already see the problem right there. The author equated guardianship with custody.

What really happened is that when Philip Slough died intestate, his children were all minors, so the court assigned them guardians to protect their financial interests and represent them in court.

I guess some of the older children could have been apprenticed out to nearby farms, but this would have been typical for the period. There’s no mention of apprenticeships in the probate file, though.

In my last post/video, I looked at U.S. death certificates, pointing out that the genealogical information therein could have mistakes, depending on the person reporting that data. In this post/video, I’m looking at other areas of U.S. death certificates that you should pay close attention to.

First off, cause of death. Most of the time, it’s going to be something common such as myocardial infarction, but occasionally you’ll find some interesting stories.

Sometimes, you’ll encounter a dated explanation, such as Pthisis or Apoplexy. It’s always worth running a web search to discover the modern variants—Pthisis is tuberculosis, while apoplexy is a stroke. I had one 2nd great uncle, Michael Gallagher, who was in his mid-twenties when he died in 1904. His death certificate read “general paralysis” as the cause of death. I dug in a bit, and discovered that was a term for late stage syphilis. I can only imagine how scandalized his widowed, Irish Catholic mother and siblings were.

Even better is the rare cause of death that could lead to stories in the local newspaper. My wife knew that her 2nd great-grandmother, Minnie Plummer, was killed by her own son in 1929, but no one in the family had the whole story—my wife’s great-grandmother wasn’t forthcoming about the story, for obvious reasons.

When we saw that her cause of death was “strangulation by son” and that the medical examiner could only guess when she had died, we realized we had a shocking murder in the tiny farming village of Crofton, Nebraska. I immediately searched for a repository for the local papers, and found they had covered the story extensively, listing all the gruesome details of the murder-suicide. None of it was pleasant, but the raw emotion of it transformed Minnie and her kids from a few dry, unrelatable facts on old documents into living, breathing people.

Second, check where someone died. This goes back to my principle of reading everything. Again, most of the time, there’s not going to be anything interesting here—people tend to die at home. But sometimes… take a look at Emmett O’Neill’s death certificate. His place of death was the Hamburg State Sanatorium, and it was stamped rather than handwritten. So was Emmett’s cause of death: “tuberculosis of the lungs.” The 33-year-old spent 11 months dying in a state hospital, over ninety miles from his wife and three young boys.