Virginia County Court, Probate, Tax and Other Miscellaneous Records

Most courts in America are courts of record, that is, they are required by law to keep a record of their proceedings. Virginia courts are no exception. There are a few online databases for Court, Land and Probate Records which include: Virginia Land, Marriage, and Probate Records, 1639-1850, Virginia County Records, Volume VI, Volume VII and Volume IX

• County Court (1619–1902)  County courts were the court of record used by most Virginians. In 1904, county courts ceased to exist, and their functions were taken over by the circuit courts.
           County courts were established as the monthly court in the Great Charter of 1618. The monthly court was held in different precincts and heard petty civil and criminal cases. It served two primary functions: (1) it relieved the president and council of part of their duties as justices, and (2) it brought justice closer to all Virginians. When the eight original shires were formed in 1634, the monthly court was redesignated the court of shire, and by 1642 was called the county court. The county court was required to meet at least six times per year.
           The justices, first known as commissioners, were appointed by the governor; in 1662 they were called justices of the peace. The court generally included eight to ten justices, with four justices appointed to the quorum. One member of the quorum in company with three other justices was sufficient to make up a valid court.
           The county court also sat in special terms. These were well publicized meetings of the court for specific functions. The orphans' court, begun in 1642, reviewed annual accounts of orphans' estates and ensured that guardians did not waste the estates or mistreat the orphans. Apprentices could appeal to the orphans' court in cases of mistreatment or failure of masters to live up to their contracts. The court of claim was a special session for the county's citizens to present monetary claims against the county before the levy was laid. Beginning in 1645, the county court also sat as a court of probate, granting certificates of probate and administration, ordering inventories and appraisements, and settling estates.
• President and Council (1607–19) Until 1619, the president and members of the council heard and decided all civil and criminal cases in Virginia. Unfortunately, record of their proceedings has not survived. Once monthly courts were established in 1619, the president and council began to hear appeals of criminal and civil decisions made by those courts.
• Quarter Court (1619–61) Starting in 1619, the president and council, and later the governor and council, sat as a quarter court in March, June, September, and December to handle major civil cases, chancery, and appellate matters. When they met in other months, they met as the Council. The quarter court was designated the general court in 1661.
• General Court (1661–1851) This court had the responsibility of hearing county court appeals, major civil cases, capital crimes, and probate matters until 1851. Two other courts were established during the general court's existence: (1) the high court of chancery, and (2) district courts. The high court of chancery took over appellate functions in county court chancery cases in 1777, and district courts took over appellate functions in county court common law cases in 1789.
           The judges of the general court also sat on the district courts. They spent much of their time in the lower court until 1814, when the general court was made the supreme criminal tribunal in Virginia. The general court was abolished by the 1851 state constitution, and its functions were transferred to the supreme court of appeals.
• Supreme Court of Appeals (1779–present) Since the supreme court of appeals was created in 1779, it has had final jurisdiction in all civil cases. It has been the state's only court of final appeals since the general court was abolished in 1851.
• High Court of Chancery (1777–1802) At its creation in 1777, the high court of chancery assumed jurisdiction over all chancery cases in the state. It was abolished in 1802 and replaced by the superior courts of chancery.
• Superior Courts of Chancery (1802–31) Originally, there were three chancery districts, with superior courts of chancery in Staunton, Richmond, and Williamsburg. Additional districts were added including Wythe County, Winchester, and Clarksburg in 1812, and Greenbrier County and Lynchburg in 1814. The Superior Courts of Chancery were abolished in 1831 and replaced by the nearest county's circuit superior court of law and chancery.
• District Courts (1789–1808) In 1789 Virginia was divided into eighteen districts, each including several counties. Courts were held twice each year, always in the same location. District courts were replaced by the superior courts of law in 1808.
           The eighteen district courts were held at the courthouses in Charlottesville, Fredericksburg, Richmond, Wiliamsburg, Suffolk, Winchester, Staunton, Dumfries, Petersburg, and possibly others.
• Superior Courts of Law (1808–31) Created in 1808, these courts met twice a year in each county and took over the functions of the district courts. They were sometimes called circuit courts because a general court judge rode a circuit throughout his district to hold these courts. They were replaced in 1831 by the circuit superior courts of law and chancery.
• Circuit Superior Courts of Law and Chancery (1831–51) These courts were organized like the superior courts of law; sessions were held twice a year by a general court judge who rode a circuit. They assumed the functions of the superior courts of law and the superior courts of chancery. The state constitution of 1851 abolished these courts and replaced them with circuit courts.
• Circuit Courts (1852–present) Courts were held twice a year in each county, and records were filed with the county. Originally, there were twenty-one judges who rode circuits to hold these courts.
           The state constitution of 1902 did not include provisions for continuing county courts, and circuit courts took over their functions. The circuit courts are now the only court of record in Virginia's counties.

Original court records are housed at The Library of Virginia; pre-1865 records are available on microfilm there and at the FHL. While it is always best to rely upon original documents for research, the condition of original court records varies considerably: some are still firmly bound and easy to read, some are faded and crumbling, some are torn or have missing pages, some have been restored through lamination, and many have been destroyed or lost. Because of these circumstances, printed transcripts can prove invaluable to the researcher who knows their limitations and uses them wisely.

County Court Order Books

County court order books or minute books have survived for many Virginia counties. They record all matters brought before the court when it was in session and may contain important information not found anywhere else. Generally minute books contain brief entries, while order books provide synopses of cases in a neater, more organized form. These volumes are sometimes internally indexed; more rarely, there is a comprehensive index.  A wide variety of information is found in order books including: appointments of county and militia officers, records of legal disputes heard before the county court, appointments of guardians, apprenticeship of children by the overseers of the poor, naturalizations, road orders, and registrations of free Negroes.

Guardianship /Fiduciary Books

When an individual acts as a trustee for another, the relationship is described as a fiduciary one. The protection of inherited property (both real and personal) was an important reason for the creation of court records. When minor children survived a parent, a guardian was often appointed to protect the estate for the children.  Appointments of guardians are recorded in the county court order books.  In the index, the guardian appointments may be listed in the name of the orphan, the name of the guardian, or under the general category "orphans."

A guardian was appointed by the court only if there was an estate to protect. At age thirteen, a child was eligible to go into court and choose his own guardian. Poor orphaned children did not have guardians and were bound out to learn a trade. In the colonial period, this was handled by the vestry of each Anglican parish. After disestablishment, the orphans were bound out by the overseers of the poor for the county. Records of apprenticeship are found in the county court order books.

Periodically guardians were required to bring estate accounts into court.  These were often recorded in volumes known as guardians accounts. The estate of a deceased person with minor children required the keeping of records (estate or fiduciary) until it was settled. This occurred when the last minor child married or arrived at legal age. Records of this sort are found in will books, estate account books, and fiduciary or audit books.

Availability of Records for Research

In many cases, the original record books and loose papers (suit papers) have remained in the locality where they were created and are kept in the office of the circuit court clerk. Microfilm copies of extant record books are available at the Library of Virginia from the date of the formation of the county or city to approximately 1865, along with a growing collection of post-Civil War holdings. A Guide to Virginia County and City Records On Microfilm may be found on the Library's Web site. Microfilm copies are also available through interlibrary loan.

• Virginia County Records, Volume VI, Volume VII and Volume IX
• Virginia Huguenot Refugees, 1700
• Virginia Immigrants, 1623-66
• Search Court Records From All States
• Search County Court Records
• Search County Criminal Records with a Criminal Background Check
• Search for Registered Sex Offenders in your local Area

In Virginia, estate records are produced by civil courts on the county level—in the county and circuit courts—except in independent cities where probate matters are the responsibility of the circuit court. Wills, administrations, guardianships, inventories, appraisals, and settlements are some of the records related to a person's estate or probate record.

The Common Law of England applied in the colony, as did the written laws of England. Two important principles were primogeniture and the right of dower. Primogeniture is the device by which estates, particularly land, were kept whole. Basically, the eldest son, by right of birth, inherited all real estate. The right of dower is an old Common Law principle. Women acquired a dower right in all of their husbands' real estate at marriage. At his death, the widow had the right to a portion of the real estate for the remainder of her natural life; the dower was generally one-third. Widows also had a dower right to their late husbands' personal property; once again, the dower was generally one-third but might be an equal division with all of the surviving children. In 1673 the House of Burgesses confirmed the right of dower. The widow received one-third of her late husband's personal property if there were one or two children; if there were three or more, she inherited equally with the children. She also inherited one-third of her late husband's real estate for life and could not be disinherited.

Probates and administrations could be granted in three different places. English law specified that the Prerogative Court of Canterbury had probate jurisdiction in Virginia; Virginia law required probates and administrations to be granted in the Quarter or General Court; and after 1645, certificates of probate or administration could be granted in the county court. Wills, inventories, and appraisals were supposed to be recorded in both the county and the office of the Secretary of the Colony. The greatest source of probate records is the county.

All aspects of probate proceedings were generally recorded in “will books.” Original will books are available at the county clerk's office or The Library of Virginia; moreover, most extant will books prior to 1865 have been microfilmed and are available at The Library of Virginia and the FHL.

Many Virginia counties have “loose papers” or “chancery court records” on file in metal boxes at the clerk's office. These often contain additional information such as affidavits, powers of attorney, letters from individuals living outside the county, and receipts submitted to the court in the process of probating an estate. These records are filed chronologically, have not been filmed, and, in many instances, are in poor condition, but can be searched at the clerk's office.

In addition to printed indexes, many early Virginia will books have been abstracted and published. The Library of Virginia and the FHL have large collections of these works, and many other libraries nationwide have some printed will abstracts

Wills, inventories, appraisals, estate accounts, and divisions of estates were usually recorded in will books. In the seventeenth century, some counties kept records of all types in volumes called record books or great books. Examples of multi-purpose record books include Goochland County's deed books, which record both wills and deeds; Pittsylvania County's accounts current, which record inventories, appraisals, and estate accounts; and Norfolk County's appraisements and audits, which record both inventories and appraisals.

Surviving will books for Virginia counties are usually indexed by the testator or decedent, but seldom by the legatee or heir. Consolidated indexes to probate records on microfilm are available for most localities. Clayton Torrence's Virginia Wills and Administrations, 1632-1800 indexes early wills, inventories, and administrations. A list of probate records omitted from Torrence's volume (along with corrections) is available.

Researchers must be aware of the laws that caused a record to be created and how legal changes affect the records used. In October 1776, entail was abolished. On 1 January 1786, the English system of primogeniture ceased in Virginia. These two events affected the content of probate records. Under primogeniture, Virginia wills may not always name the wife or the eldest son of the testator. Their inheritance of real estate was set by law, the widow receiving her dower, or one-third, for her lifetime and the eldest son, as heir at law, receiving the remaining two-thirds unless otherwise specified in the father's will. After the Revolutionary War, when Virginia's general inheritance law took effect, all heirs of intestate estates inherited equally.

Individuals with a written will died testate. After the death of an individual, his or her will was brought into court, where two of the subscribing witnesses swore that the document was genuine. After the will was proved, the executor was bonded to carry out his or her duties to settle the estate. The court then ordered the will to be recorded. The executors' bond was also filed with the court. If the witnesses to the will were dead or could not be located, the will was lodged. These lodged wills were not recorded, but were kept by the court and the estate was treated as an intestate estate.

Individuals without a will died intestate. The court appointed an administrator who was bonded and issued an order to appraise the deceased's estate. The court usually appointed four appraisers, any three of whom might serve. They returned an inventory of the decedent's personal property to the court to be recorded. An appraisal listed the personal property and assigned a monetary value to each item. Accounts current are the statements of monies received by and paid out by the executor in settling an estate.

Virginia did not require the filing of estate papers documenting each activity of the executor. The assumption was made that the executor settled the estate as directed by the will and by law, and no records were created if the work was done correctly. Consequently, Virginia has no estate packets or probate packets. If the executor did not act correctly, the offended party could bring suit in chancery. Such chancery suits often generate a detailed record of the disputed part of an estate's administration.

• Virginia Land, Marriage, and Probate Records, 1639-1850

American court files mirror U.S. history. Buried away in courthouses and archives everywhere are the dreams and frustrations of millions of citizens. The chances are great that your ancestors have left a detailed record of at least some aspects of their lives in court records.

Most of us don’t think of court records as the rich source of personal history that they are. But America’s English heritage established a tradition of court processes in which the people have a right to participate actively—and we always have. With relative freedom from royal supervision and with court enforcement of religious as well as civil laws, American courts tried many matters that were not subject to court action in other parts of the British empire and that are now considered too minor to warrant criminal action.

When a person dies, every state has laws that provide for public supervision over the estate that is left, whether or not there is a will. The term “probate records” broadly covers all the records produced by these laws, although, strictly speaking, “probate” applies only when there is a will.

Family historians use probate case files far more than any other kind of court record. Probate case files are logical sources because they tend to include so much personal data, and because Americans have depended on the courts to settle their estates since North America was colonized. According to Val Greenwood in his Researcher’s Guide to American Genealogy, “All records which relate to the disposition of an estate after its owner’s death are referred to as probate records. These are many and varied in both content and value, but basically, they fall into two main classes: testate and intestate” (page 255). Probate case files generally provide names, addresses, and biographical data for the deceased, but frequently provide the same information for other relatives named in the papers. Relationships, maiden names of wives, married names of daughters, past residences, and place of origin in a native country are just a few of the details that can be discovered in probate files. And probate files can be found in courthouses and archives across the United States.

When requesting probate information from the county clerk, it is important not to limit yourself by asking for a person’s “will.” The clerk will usually take you at your word and not copy other papers in the probate file that may have equally important information if there is no will.

Even if your ancestor is not mentioned in a probate case, consider all of the other procedures which might have resulted in him or her appearing in court records: