By Jeannette Holland Austin
Issue No. 8             May 2003
Your family may have already been traced. Find out!

Court House Records : Probate

The term "probate" refers to wills, administrations, administrator and guardian bonds, letters of administration, letters of testamentary, sales, inventories, receipts, vouchers --any and all things pertaining to an estate. In southern research, I frequently attended the "Court of Ordinary" to do my searches. Since, I have noticed that many areas are now using the name "Probate Court". To do research, go to the Record Room of the Probate Court. This is where the clerk's books on all the probate records reside. They are generally all indexed, although the index itself may be scattered or unalphabetical. And, sometimes the index is in the back of the book. When a person died, here is what happened: The original Last Will and Testament was dispatched to the Ordinary to be probated. The Clerk sat down and copied from the original into his large, hard-bound Will Book. Then, the original was placed with the county's records.

Since the Clerk copied in his own handwriting from the original will, errors are sometimes noted. So, when reading from the clerk's book makes one take mental notes of any probable errors. I have seen misspelling of names, omitted first names, and total omission of names. So the search begins for the original document. Good luck! Who knows what in the world has happened to most of the originals. My experience in the courthouse has located miscellaneous original wills tied together with rubberbands, then placed in one of the metal filing cabinets in the Record Room of the clerk's office. Also, I have been told that originals were stored in the basement in pasteboard boxes. Of course, depending upon how early the county was formed, there would have to be an enormous storage problem in these record rooms. Be that as it may -many, many originals are not to be found!

Another problem. Locating the clerk's will book. In the past these crumbly books were retained in the record rooms. Now, more and more, historical societies and state archives are removing them into their custody. Does the clerk know where they are? Of course not. So what you have to do is look for local historical societies and state archives and visit them.

In Georgia, certain records are in the custody of the Georgia State Archives, almost under lock and key. You have to view them under security conditions, without pen nor pencil in hand. In other words, extensive steps have been taken to protect fragile records. Sometimes I have asked the librarians if they had certain originals, and the answer was "no". Later, I discovered they did have them. What I'm saying here is that we have to always use our big fat snooper nose!

Letters of Testamentary were then issued to the Executor of the Will, and he had the powers to administer the estate without filing reports, returns, making bond, etc. with the courthouse. From there, he sometimes conducted an Executor's Sale to sell off property or other items of the estate, publishing the notice of such intent in the local newspapers. This was called an "Executor's Sale" and headed up that way in the newspaper. Since the Executor was not required to file annual returns or receipts, that makes it difficult to find all the married daughters. Contrastly, administrators have to file returns and take receipts, and it is in those receipts where relationships are found. If there was an Executor's Sale, or Inventory of the Estate filed, you can, however, carefully examine the names of the purchasers. Then, go to the marriage records for that county and see if any of those persons married Adairs, for example. Relatives did purchase items at such sales.

Date of Probate: How can you tell the date of death? What I do is go by today's standards. For many years I worked in a legal office, and noticed that it was the day after the death that families delivered the Last Will and Testaments to be probated. The reason is that they needed to conduct day-to-day business, like checking accounts, etc. In earlier times they didn't have checking accounts, but there were Notes given by the testator to his neighbors, and vice versa, crops to sell, and properties to divide, such as land and slaves. Plantations kept records -names of slaves, who they were rented or sold to, personal Notes due or paid, etc. Such details show up in annual returns and receipts of intestate estates.

One should always write down the names of witnesses to the will, date of will, and date of probate, and who offered it for probate. Recently, I had a situation where we did not know "where" a daughter died. We found where her husband sold her inheritance, and the date of sale was headed "Tennessee, Rhea County". Filing date: "June 5, 1851." Another deed was found where adjoining property was sold by her mother. Filing date: "June 5, 1851". Thus, the filing date meant the same person probably took it to the courthouse and filed it. In this case, the last dated transaction was the mother's and she obviously took the two deeds to the courthouse and filed them herself. Her son-in-law, being in Tennessee, meant that was where his wife died. (Of course I had not found the daughter in the family graveyard). Such details help.

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