A will is a legal document directing the disposal of a person’s property after their death. A person who makes a will is called a testator. A will must conform to the current law and that usually means that it must be in writing and signed by the testator in the presence of witnesses.
Probate describe the process used to settle the estate of a person who has died. Anyone who has real property (unmovable, such as land and buildings) or personal property (moveable) could have a probate record.
Information you can find in a will includes names and relationships of family; approximate ages of minor children; information about land and other property; name of the executor, who is usually a family member; and names of witnesses, who in older wills usually were relatives or close friends.
In many cases, a will shows only a partial picture of the family. A wife may not be the mother of all or even any of the children listed, and all the children may not be named in the will for various reasons. Do not assume that only those listed in the will are related to the testator. Some children might have already received their inheritance, might have died, or might have been estranged from the parent.
When a person with a will dies, the estate is referred to as testate. The will is presented in court by the executor, who makes a petition for probate. The will is then "proved" by witnesses and letters testamentary are issued to the executor. The executor might have to post a bond.
People tend to quit looking when they don’t find a will. Don’t make that mistake. A will is only one of the numerous documents in a probate file.
When a person dies without a will, the estate is said to be intestate. Surviving relatives or an interested party applies to the court for letters of administration. A hearing is held, and an administrator is appointed. Letters of administration are issued and the administrator posts a bond. The probate record will include the documents relating to this process. After the initial hearings, testate and intestate estates are handled the same. The documents that could be found in a probate are appointments of guardians, inventory of assets, public sale bill, assignments of dower, final account settlements, distribution decree, and receipts. The information which can be found in these probate records is name; date and place of death; name of spouse; names of children with approximate age if minors, grandchildren; spouses of married daughters; residence of the deceased and relatives; location of property owned; clues to occupation and financial status; and signatures of the deceased and other relatives.
Wills and probates are usually found at the county level of government. The office responsible for keeping the records depends on the time period and the place. The records may be stored in volumes of books. There could be one probate book or several, which are divided by the type of record (will, inventory, etc.). Probates could also be stored in files. Probate files have all of the documents for a case in a single file. They are stored and filed by docket or case number.
A large collection of old wills and probates have been indexed and are published either in book form or on the Internet. Most probate offices have indexes to their wills and probate records. Specific information about areas can be obtained from The Handybook for Genealogists by Everton Publishers and the Redbook by Alice Eichholz.
So, don’t give up if you can’t find a will. The probate record could be the goldmine of genealogical information for which you’ve been searching.