Probate records can be a precious source for family historians as they can give important information about an ancestor and are often the only record where all members of a family may be listed.
Records in a Probate packet include:
The Last Will and Testament – A will is the indication of how a person wished his/her estate to be disposed of at death.
Codicils – Written amendment to a person’s will that must be dated, signed, and witnessed in the same way as a will would, and must make some reference to the will it modifies. A codicil can add to, subtract from, or modify the terms of the original will. When a person dies, both the original will and the codicil are presented to the court for approval (probate) and serve as the foundation for the administration of the estate and distribution of the writer’s assets.
Letters of Administration – If there is no valid will or the executor(s) are unable to carry out their function, the State Supreme Court issues letters of administration authorising a person(s) to act as executor.
Other documents may include an inventory of assets of the estate; affidavits of death and copy of the death certificate; oath of office of the executor; affidavits sworn by the executor; executor’s petition for probate; affidavits of attesting witnesses; notices of motion for administration; any application or lodgement documents including notice of motion for probate and address for service; orders relating to the filing of accounts; or renunciation of probate by the executor.
Things to bear in mind when researching probates and wills:
Probate – The executor specified in the will or chosen by the Supreme Court generally administers the estate of a deceased individual. Only around 5% to 10% of all wills go through probate, which is the official granting of power by the Supreme Court to an executor to carry out the contents of a will. Probate is often sought only when a bank or other institution demands official verification of the executor’s right to administer the will. There is no need to keep a copy of the will if probate is not required.
Individual wills, on the other hand, may occasionally be unearthed in Will Books or among private papers or the records of individual lawyers or executors.
Intestacies – Wills for which the Public Curator (now the Public Trustee) was designated executor, as well as estates for which there was no will and which were handled by the Public Curator, are included in the Public Curator’s files (orders). As a result, certain wills that did not proceed to probate may be found in intestacy files.
While probate records are one of the most accurate sources of genealogical evidence, they must be used with caution. For example, they may:
- Omit the name of the eldest son who received his inheritance according to law
- Omit the names of others who had previously received their inheritance
- Not record any deceased family members
- Give inaccurate impressions of relationships of people mentioned in the document i.e historically a step-son or adopted son was called a “son-in-law”
There is no central archive of Australian probates or wills. Collections are held in each state, in either the relevant state archives office or at the Supreme Court registry.
Pictured: The Old and New Home Stations, Nicholas Chevalier (1828-1902)