Finding Out More about Probate Records Part II

A few weeks ago, I admitted to some considerable knowledge gaps when it comes to probate records. Ancestry’s recent mass digitization of probate records left me with a lot of questions. I decided to reinvest some income I received doing document retrievals and educate myself on this topic. I am happy to say I finally bought Greenwood’s book, The Researchers Guide to American Genealogy, which I am loving. I also rented the BCG webinar on probate records and have otherwise been reading what genealogists who specialize in this topic have to say. While I’m still no legal expert, I’ve already learned enough to answer most of my questions and then some. Here’s a summary of the initial questions I posted along with my new-found knowledge:1. Why can’t I find records for any of my Chicago ancestors? With very few exceptions, my ancestors were Chicagoans. Before Chicago, they lived in Europe. . . . Most of these people possessed very little in terms of material goods, so it is easy to assume this fact alone accounts for this lack of probate records. However, I am beginning to think that the assumption that poor families left no probate records is something of a misnomer. . . .While it is true that you are much more likely to find record of probate for a wealthy ancestor than a poor one, the crux of the issue isn’t really economic status, but rather ownership of property. [1] If you are researching an ancestor who was poor, but also lived in an agrarian community or in a time and place where most people of similar socio-economic status owned land, you may just find a probate record for that individual. If however, you ancestors were like mine -- poor, tenement urban dwellers – well, those individuals rarely had much in the way of property or material goods to be divided among their legal heirs. Hence, there is often no record of probate.Nevertheless, even if your ancestor had no record of probate relating to his or her estate, that person could still be mentioned in another individual’s record of probate. I had not considered this possibility before. Probate records name witnesses, executors and heirs, to name a few – and your ancestor may be among these individuals. Even more interesting, probate records can be used to find record of enslaved people, who may have been listed as property on pre-civil war probate records. Greenwood estimates that about 50% of all “people in America, historically, have either left wills or have been mentioned in them. [2] So never assume probate records won’t be of much value to your genealogical search. Whether your ancestors had money or not, they may be found in probate records.2. It appears that most of the available records on Ancestry date from early years of the 20th century or earlier. Is this a legitimate observation, or am I totally off? If I am correct, why is this the case?I still haven’t found a great answer to this question, but I did learn that probate cases generally fall under county jurisdictions [3] , and their availability varies by each jurisdiction. Ancestry itself put it this way, “Knowing where your ancestor’s estate was processed is step one. Step two is determining whether or not Ancestry has records for that time and place. While the U.S. Wills and Probates collection does include records from all 50 states, it does not include all U.S. probate records. Over the years some records have been destroyed by fires, and in some places, they have not been microfilmed or digitized and still are only available offline in thecounty courthouse or in a local repository.” [4]It seems logical that early probate records are more readily available because those are the ones the local courthouses or repositories have already relinquished to the microfilm and digitization process. This might also help account for my negative searches for my Chicago family, who were all relative newcomers to the United States. The courthouse might still hold their records, if any exist; which brings me to my next question:3. Where else should I be looking? Obviously, not every US probate record ever recorded is included in Ancestry’s database. I know the Circuit Court of Cook County has an index I’ve searched in the past with some promising results. I hope to do look ups there next time I am in town.Ancestry itself tells us its record set is not exhaustive -- not that we expected it to be. The fact that so many of these records are now digitized and searchable is something to appreciate. That said, fellow blogger Randy Seaver at Genea-musings, estimates that the Ancestry collection only includes some 5-10% of all probate records already microfilmed.[5] While I would be curious to know the source of this estimate, the point is clear: there are no doubt valuable probate records still out there to be found.So first, I am going to look at the county level. As I already suspected, the Circuit Court of Cook County is a repository I need to investigate if I want to do more digging.[6]Second, I am going to look over the FamilySearch probate holdings for Cook County again. While the FHL catalog is a logical place to search for probate records (For any genealogist, but for me especially since I am local), it is by no means the only archive containing microfilmed probate records. It seems worth your time to investigate these types of facilities for records pertaining to your ancestor’s local area. [7]Finally, although I doubt whether I will find any useful to my personal family genealogy, in order to leave no stone unturned, I should check and see if there are any compilations or abstracts of probate records already published. Greenwood recommends using these when the originals cannot be obtained, which is sometimes the case for early records.[8]Of course, between these various repositories and sources, there is bound to be some overlap. I don’t want to waste time searching for the same documents, but I want to make sure I cast my net as widely as possible. A detailed research log will be paramount here. Check out Seaver’s state by state research table strategy for keeping track of probate record searches.4. What about privacy laws? Ancestry says they have records dated as recently as 2005. How is it I can easily access a 10 year old probate record, but I have to wait 72 years for the census?The answer to this question is pretty simple, if somewhat illogical. Even though probate records give lot more information regarding matters some families might wish to keep private, the fact is they are simply classified as public record. Census records, on the other hand, are not designated as public record until 72 years after they were created.[9]5. I’m really not familiar with law/legal terms. What does all this stuff mean and how did the process work?I think the language and process of probate records can make them seem intimidating, when in reality, they are not that complicated. After just a few weeks of research, the process makes a lot more sense to me than it did initially. However, even though probate records need not intimidate genealogists, they still must be understood within their historical context. Greenwood wrote, “. . . the more you know about the legal processes which bring probate record into existence (within limits of course) the more value they will have for you. . . .” [10] Understanding the historical and legal context of a document will often necessitate further research. For example, in his lecture for the BCG, Hait gave an example where his understanding of a specific statute regarding the legal age of a probate witness helped him correctly identify an individual. Sometimes finding out exactly what the law said for the time period and jurisdiction you are researching will require extra effort. Hait recommended university law libraries and even Google Books as good starting places should your analysis require such research. [11]In any case, my self-made crash course in probate records showed me there are a number of resources out there for those of us who lack a law background. Here are just a few resource I found along the way:--Black’s Law Dictionary by Henry Campbell Black--Estate Inventories and How to Use Them by Kenneth L. Smith--Judy G. Russell’s blog, “The Legal Genealogist” – a quick search for “probate records” brought up so many interesting posts! If you are not familiar with Russell or her blog, be sure to check it out.Well, I’m glad to say I’m no longer completely in the dark regarding probate records. Iam  excited to see what I can dig up next time I’m in Chicago. Of course, my probate record research revealed to me new, additional topics about which I want learn next. My reading list gets ever longer. Nothing wrong with that.[1] Val D. Greenwood, The Researcher’s Guide to American Genealogy, 3d ed. (Baltimore: Genealogical Publishing Col, 2000), 310-311.[2] Ibid., 310.[3] Ibid., 312, 345.[4] “5 Things You Should Know to Get the Most from the Probate Collection at Ancestry,” Article. Ancestry.com (http://c.ancestry.com/cs/media/5-things-about-probate-collection.pdf : accessed 28 Sept 2015).[5] Seaver, Randy, “Mining the Ancestry Probate Records Collection - Post 1: Pennsylvania,” Genea-musings, 8 Sept 2015 (http://www.geneamusings.com/2015/09/mining-ancestry-probate-records.html :accessed 30 Sept 2015.[6] According to the state by state guide in Val D. Greenwood, The Researcher’s Guide to American Genealogy, 3d. ed., 345-349.[7]Ibid., 349.[8] Ibid., 349.[9] For classification of probate records see Teo Spengler, “Does Probate Make a Will Public,” Legal Zoom Website, No date (http://info.legalzoom.com/probate-make-public-4666.html : accessed 30 Sept 2015). For classification of census records see Census Records, United States Census Bureau, No Date (https://www.census.gov/history/www/genealogy/decennial_census_records/census_records_2.html : accessed 30 Sept 2015).[10] Val D. Greenwood, The Researcher’s Guide to American Genealogy, 3d. ed., 326.[11] Michael Hait, “Of Sound Mind and Body: Using Probate Records in your Research” BCG Webinar, 17 Nov 2014, (https://vimeo.com/ondemand/haitprobate : Accessed 27 Sept 2015).