About Probate Records
Probate records are those records and files kept by a probate court. The word probate comes from Latin and means "to prove," in this case to prove in court the authenticity of a last will and testament of someone who has died. In the absence of a will, inheritance laws have provided for the passing on of property, belongings, and assets.
Probate courts are under state jurisdiction. State probate laws have changed over the centuries. The kinds of records to be found in probate files have changed accordingly. Probate laws can vary from state to state but tend to follow certain general practices. The probate of the estate of someone who has died and has left a will is called testate. The probate of the estate of someone who has died but has not leave a will is called intestate.
In Martha Ballards time, the late eighteenth century, not all wills were probated. Outstanding debts had to be paid before the estate could be distributed to heirs, but often, after a person died, the heirs handled the estate informally. They paid off debts and then divided the estate according to the will or as provided for by law, such as apportioning the use of one third to a widow until her death. If debts went unpaid, the court could open the estate, pay the debts, and then distribute the remaining assets. More men than women were represented in early American probate records because of laws restricting the ownership of property by married women. Nevertheless, some women did appear in probate records.
At times, probate courts have also had jurisdiction over other proceedings such as adoptions, guardianships for minors, and name changes after divorces. Now other courts handle these functions. Thus researchers will find that the contents of probate files change over the years.
At the end of the twentieth century, nearly all deaths are followed by probate, if only to establish that there is no need for probate proceedings. If there is a will, then there is an executor of the will. If there is no will, then three is an administrator of the estate.
Probate records can usually be found in the court records of the county where the deceased was last living. In some cases, early records have been moved to other depositories such as state archives, to allow for better security, temperature and humidity control, and more space for newer records. As storage space and available facilities change, so do the sites of probate records.
Probate records can give the historian invaluable information. For example, genealogists value the lists of heirs and divisees that indicate familial relationships. People researching material culture can learn much from household inventories. Historians trying to learn more about particular buildings often find useful information in real estate inventories.
Many thanks to Brian Burford of the N.H. State Archives, Concord, NH.