5 Things to Know About Your Ancestor’s Probate

Probate records are created to settle a person's estate after they die. They can have tremendous amounts of information in them. However, there are some misconceptions about what some of them mean. Here are 5 things you need to know when looking at your ancestor's probate records. 

5 Things to Know About Your Ancestor's Probate


1. "Heir" Doesn't Automatically Mean "Child"

Since probate records do often include children of the deceased, it's easy to assume that "heir" means "child." However, "heir" just refers to someone who is legally entitled to inherit from the estate. If a person leaves their cousin something in the will, that cousin is an heir. If a person dies intestate (meaning without a will), the laws in place at the time determine who the heirs are. Those heirs could be children, grandchildren, siblings, or even nieces and nephews, depending on the law. 

2. Having a Guardian Doesn't Necessarily Mean Both Parents Are Dead

A guardian (in the legal sense) is someone who is responsible for representing the legal interests of the ward. It isn't uncommon at all for one of the parents to still be living. A common situation is that the father died, leaving young children. His widow didn't have many legal rights (by virtue of being female). Since she didn't have legal standing, she couldn't represent the legal interests of her own children. A guardian would be appointed to take care of those legal needs. 

(Side note: the ward didn't have to live with the guardian. It's a legal arrangement, not a custodial arrangement.)

3. Wills Don't Necessarily Include All of the Children

There's no law saying that someone has to leave something in the will to each child. Older children who were already married and on their own might be omitted, especially if the deceased had given them land or other large gift when they got married. Some might be omitted because of differences in the family. (I like the will in one of my ancestral lines where the clause was, "If any of my heirs contest this will, they are to be removed and inherit nothing." Yeah, I'd like to know what prompted that!) 

4. Will Books Are Not Original Wills

Have you ever noticed that the wills in a will book have the same handwriting? It's because they were copied into those books by the clerk. Will books were created as a sort of "ready reference." Rather than having to dig through the loose probate papers or probate packets each time they needed to reference the will, they copied them into big books. (It's where genealogy meets weight training.)

Like any other derivative source, mistakes could happen when copying the wills into the will books. Whenever possible, see if you can obtain the probate packet that contains the original will. (Some have been digitized, many more have not. If you're trying to track one down in a particular county, contact the local genealogy society. They can point you in the right direction.)

Joseph Ward will, Perry County, Ohio Will Book 1-2, page 192; image from FamilySearch.org, "Ohio Probate Records, 1786-1996." -- This is not his original will.

5. You Might Be Better Off If They Didn't Leave a Will

If a person died intestate (without a will), but they had assets (or debts) that needed to be distributed, there would still be probate. Ironically, our research can be better off when they died intestate. If they left a will, they could omit any or all of their children, they could name their spouse as "my beloved." (That drives me nuts!) But when they died intestate, the law took over. All of the heirs need to be included. There is usually a statement as to how the heirs are related to the deceased. You don't always get those details when a person left a will.

Your Turn

What have you found in probate records? What has confused you about probate? 

Posted: October 20, 2017.

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  • Regarding #1, an “heir” is typically what we think of in genealogy. Intestacy laws vary in states, but typically a spouse and living children split an estate if there is no Will and the estate moves through probate, then it follows along to parents, siblings, aunts/uncles, cousins, etc. Under a Will, the grantor may provide for whomever they wished. Distributions may go to “heirs” (genealogical relatives), or “legatees” (specific people or entities that are not heirs), or both. Heirs and legatees can be tricky and are most definitely not the same thing. In Illinois where I live (and work with probate docs ­čśë ), we must notify all HEIRS in a probate, even if they are not to receive any distribution. Some of the cases I have worked on will be a genealogical windfall! The best parts of probates, in my opinion, are the Affidavit of Heirship and Receipts on Distribution (showing names, relationships, often address, and signatures!).

  • Thanks Amy this post is very enlightening. In my great-grandfather’s probate records I found an itemized list of funeral expenses. This included lumber and nails for coffin. coal to heat the church for the service among other items. Another probate included the auction of the deceased’s personal items and livestock and what the widow paid to retain the items.

  • Yes, I had seen something similar to your Item 3 before. The man who wrote the will was widowed with 3 daughters and one son. He bequeathed his only son, $100.00 and nothing more. If my son contests this will, he is to receive nothing. He left two of his daughters with more substantial sums and his housekeeper more than his son, but slightly less than the daughters. One daughter, already married to a fairly wealthy individual, received the bulk of his estate – can you say daddy’s favorite? Yes, you have to wonder what was going on in those family dynamics.

  • I had an ancestor who was appointed Guardian for a young woman whose father had died. When she married, the property she had inherited was transferred to her husband. The Guardian ended up marrying the young woman’s mother.

  • Oh, Amy! Your post is quite timely, as I’ve located the probate record for my 3rd Great Grandfather, and boy, do I have questions!

    At first I wasn’t sure the probate record I found was actually for him. His name appears in our family Bible as Henry Langhorst, and in all the other documents I’ve found for him, his name is Henry Langhorst. The probate is for Herman H Langhorst. He names the executor as Henry Frederick Langhorst. I have another branch of my tree that comes from Germany, and all the sons have the same middle name, which is the 1st name of their father. Knowing this family is also from Germany, I thought maybe they had a similar naming convection. It’s possible the probate was for Herman Henry Langhorst and the executor is possibly his brother Henry Frederick Langhorst… and maybe their father was Henry. Anyway, I decided to take a closer look at the document, and I’m glad I did!

    The will contained in the probate lists his six children – in the same order that I have from my research of the family. It looks like this IS his probate record. Also, five of the children are girls – and he provides their MARRIED names! I already had 2 of the married names, and they match what was in the probate record. Again – another sign I’m on the right track. And with the other married names, I can hopefully find additional information about this family.

    The probate document is dated 19 May 1896, and it indicates the will was written 8 Feb 1893.

    I haven’t been able to find an actual death record, or grave for him – but based on the probate date, I assume I should be looking in the 1st half of 1896, correct?

    The second child named in the will is Louisa Koenig, my 2nd Great Grandmother. She died in 1887 – long before the probate. In fact, she passed away before the will was written in 1893. She had 5 children – would her name be included in the will so that her children could inherit? or maybe the date of the will is wrong?

    Where do I go from here?

  • There’s an interesting case in my family that plays intestacy off against a will: my fifth-great-grandmother’s will names none of her children (she seems to have outlived them all) but mentions grandchildren and great-grandchildren, descended from all three of them.

    Nearly forty years earlier when she’d distributed the estate of her husband (my 5GGF) the estate was divided between her and his two children; since all heirs would be named in that situation, this made it clear that her eldest daughter was the child of a previous marriage, and in fact she (5GGM) turns up in her own father’s will with a different surname, even though we have found no direct record of that marriage or husband.

  • Still looking for any papers GGGF died in 1844 in St. Louis on business, leaving wife and 2 boys back in NJ. Tried probate, orphans ct., etc. nada

  • I found a will from the 1700 that listed every single possesion the deceased owned. It was a lovely snapshot of the type of posessions. Wondering if you have come across any wills from 1600. They are quite flowery to read but did verify his children for me & verified my work. It also gave me info that 2 of his daughters children had no guardians. I now understand this. Thank you.

  • My 4th great grandmother was not mentioned in her father’s will. Her husband received land from her father as dowry. When my 4th great grandparents sold the land prior to moving further west, she had to state to the judge that it was okay for her husband to sell the land. The witnesses to the sale also helped me determine her husband’s brother!

  • Amy, an interesting will that I have seen for one of my ancestors left all of his land & much of his personal property to his wife, as long as she remained his widow. In the event of her remarriage,she was to receive only one dollar. I don’t have the document in front of me so I can’t remember if it specified a redistribution in the event of the remarriage.

    This creates an interesting question of enforceability. If this widow did in fact remarry say 10 years later, did the children who may or may not have been named have a claim against their mother? If this were a family where ill will had developed, it seems that such a provision could have interesting effects down the road. The will was written and probated in East TN in the 1800s.

    Such a provision also says a little about the deceased person’s concern (or lack thereof) for the future happiness of his widow. I remember reading someone’s statement recently that we should remember that many marriages in earlier times had little or nothing to do with love and often had everything to do with convenience.

  • Had a relative die intestate in 1824 leaving a wife and 6 children. I found TWO separate probate records, one for a property in liberty Twp (that ended up being sold for back taxes by the wife and children) and one for his estate debts, inventories, auction etc. Then in 1841 there was a petition for partition filed on the property the family lived on by one of the daughters. One may assume that the daughter was afraid she and her siblings would not get their shares as the mother had remarried. But then when you look at land records, you find that 5 of the six children sold their parts to the step dad! The second probate made no mention of the property in Liberty, nor did the Partition. The two separate probates were a surprise. What I have problems figuring out is why wait so long for the partition. there are other Partitions in my family, but they were filed immediately after the demise of the intestate deceased some within days!

  • My favorite probate packet contained a lawsuit by the children against their widowed mother. She apparently was given a life estate, and began selling the personal property in order to pay bills, etc. The children sought a court order to keep mom from selling property that would presumably go to them in the event of mom’s death. When the sons showed up on her farm to remove hay and other items, she “removed all the bolts from the wagon,” so they couldn’t take the property. This battle went on for several months. Humorous to me, but probably not to them at the time.

  • Great post Amy. Lots of useful information.

    In my own research, I often find the most informative wills are left by unmarried or childless family members. In such cases, the estate has to be dispersed among a wider circle of relatives and friends. My favorite will (so far) has been that of a distant relative, a childless widow. Upon her death, she left a host of bequests, large and small, to almost every one of her living relatives.

    She scrupulously recorded how each person was related to her. Each item received a brief description which often included a further tidbit of family history. Her bequests read something like: “To Mrs. Jennie Smith, daughter-in-law of my late cousin Mrs. Rebecca Jones, I leave our grandmother Anna Brown’s sewing basket and second best tea set”. Fascinating reading!

  • Ever since I began doing genealogy, I have been looking for definitive proof, for or against, an often quoted son/father relationship between my husband’s furthest back authenticated ancestor, Francis Whitmore, b. 1625, who settled in the Massachusetts Colony; and a man named John Whitmore in Stamford, Connecticut, who in 1648 was killed by Indians and was therefore intestate. I have found the list of John’s belongings, but haven’t seen the probate showing distribution. Does anyone have any guidance to finding this? I live across the country and cannot visit Stamford.

  • I’d love to know the story behind the provision in the 1803 will of my husband’s ancestor Salter Searls, giving his daughter Sarah “the use and improvement of the Northwest Bedroom in my now dwelling house so long as she remains unmarried with a privilege to pass and repass from sd room into the Kitchen for the purpose of Washing and other work that may be necessary for her to do in sd kitchen and also a Convenient priviledge in the Cellar.”.

  • Hi Amy, I love this article, would you allow permission for a reprint in our Societies Quarterly Newsletter, with the appropriate references to your name, weblink to the original article and any other requirements you have.
    Lisa Baker
    Director of Communications
    Hemet San Jacinto Genealogical Society.

    • Hi, Lisa. Yes, that would be fine. Please also add “Re-published here with permission.” Thank you for asking!

  • Hi Amy, I was wondering about a late 1600’s will that was “proved at probate”, it stated which son was to receive a certain number of acres of land. It further stated that each son was to pass their portion of land only to their children and could not sell it, if they did not want it, could not afford it, or had no children they had to give it to the eldest living child at the time, he then went on to state that the whole of the property was to stay in the family “for all time” and each child that receives the land years after he’s gone must immediately upon receiving the land make a will with the same instructions to maintain the family ownership of the property, if they did not, they forfeit their right to the land “for all time”. As far as I can tell his wishes have been upheld until this very day!! I was wondering if this type of stipulation would even hold up in todays courts and does the term “for all time” carry that much weight in todays court if someone wanted to claim ownership of a property from years ago. What I found most fascinating about this entire story is the fact that the family has to this day followed the original instructions almost to the letter! (it was in Massachusetts)

    • That’s a good question — and one that I don’t have an answer to! Judy Russell, the Legal Genealogist, would be a good person to ask.

  • Thanks for explaining the difference between “heir” and “child” when it comes to probate laws. My grandma talked about leaving something for all the grandkids, so that would make all of us her heirs, according to your explanation. I wonder if she added this to her will, or if it is just something she talks about. I’ll have to ask her the next time I visit.