England Probate Records

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[[England|'''England'''&nbsp;]] |&nbsp; [[England Civil Registration|'''Civil Registration''']]&nbsp; | &nbsp; [[England Census|'''Census''']]&nbsp; | &nbsp; [[England Church Records|'''Church Records''']] &nbsp; |[[Image:Reading of a Will.jpg|thumb|right|391x299px]]<br>
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[[England|'''England'''&nbsp;]] |&nbsp; [[England Civil Registration|'''Civil Registration''']]&nbsp; | &nbsp; [[England Census|'''Census''']]&nbsp; | &nbsp; [[England Church Records|'''Church Records''']] &nbsp; |[[Image:Reading of a Will.jpg|thumb|right|384x287px]]<br>
  
 
== Introduction  ==
 
== Introduction  ==

Revision as of 20:07, 7 May 2010

 

England Civil Registration  |   Census  |   Church Records   |
Reading of a Will.jpg

Contents

Introduction

Probate records are court records dealing with the distribution of a person’s estate after death. Information recorded may include the death date, names of heirs, family members, and guardians, relationships, residences, inventories of the estate (including trade and household goods), and names of witnesses.

Probate records are very useful for family historians because:

  •  They are often the only record for the time period before census records where all members of a family might be listed
  •  They can give vital information such as localities that the individual is associated with
  •  They were recorded much earlier than birth, marriage, and death registration.

Probate records were not created for every person who died. Courts probated estates (with or without a will) for fewer than 10 percent of English heads of households before 1858. However, as much as one- fourth of the population either left a will or was mentioned in one.

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; the names of others who had previously received their inheritance; or any deceased family members.
  • Mention children from a spouse’s previous marriage.
  • Mention a spouse who is not the parent of the children named.
  • Give inaccurate relationships of people mentioned in the document

Types of Probate Records

Will. Technically, a will conveys real (immovable) property to heirs after an individual’s death. A registered will is an official copy made by a court clerk.  Click here to see a sample Will.

Testament. A testament conveys personal (moveable) property to heirs. The term, will, since early times has commonly referred to both a will and a testament.

Codicil. A codicil is a signed, witnessed addition to a will.

Administration, Letters of Administration, or Admon. These refer to a document appointing someone to supervise the estate’s distribution for someone who died "intestate" (without a will). This document gives very little information but may contain some useful clues. The administrator is usually a relative of the deceased.   Click here to see a sample administration.

Admon with Will. This record grants administration to someone else when the executor named in the will is deceased or is unwilling or unable to act as executor. A copy of the will is attached.

Inventory. An inventory lists belongings and their values, including such items as household goods, tools, and personal items. Occupations are often mentioned. Click here to see a sample Inventory.

Act Book. An act book contains day-by-day accounts of court actions, usually giving brief details of the probate matters dealt with. In the absence of indexes, these books help locate desired documents. Click here to see a sample of an Act.

Bond. A bond is a written guarantee that a person will faithfully perform the tasks assigned to him by a probate court. The executor posted a testamentary bond, the administrator posted an administration bond, and the guardian of a minor child posted a bond of tuition or curation. Click here to see a sample of a Bond.

General Historical Background

The keeping of wills and probate documents began as early as the eleventh century, but there are few records before 1400. Probates were handled by the ecclesiastical courts until 1858.

Some of the key events affecting probate record keeping are:

1642–1660:  The Civil War disrupted the probate process. Parliament abolished the ecclesiastical courts in 1653 but restored them in 1661. Wills proved during this interruption are filed at the Prerogative Court of Canterbury.

1796–1857:  A tax was placed on all estates valued over £10. This was called an estate duty.

1858:  The Principal Probate Registry, a civil government system, replaced all earlier probate courts.

Laws and Customs

The English system historically has allowed a portion of a person’s property to be divisible by will or testament. That portion changed over time according to circumstances, locality, and number of surviving heirs. For example, the unrestricted right to dispose of personal property by will was granted in the province of York in 1693, and widow’s third (a widow’s right to one-third of her husband’s estate) was barred in 1833.

With the exception of apostates, heretics, traitors, and suicides, any free male over 14, unmarried female over 12, or widow of sound mind could leave a last will and testament. If land was part of the estate, a person had to be at least 21.

Wills were made primarily by the middle and upper classes, the majority of whom were nobility, gentry, merchants, or tradesmen. Most wills were left by males with property. Before 1882 a wife who died before her husband could not make a will except with her husband’s consent or under a marriage settlement created before her marriage.

When a property owner died without leaving a valid will, the next-of-kin or creditors may have received Letters of Administration.

Until 1660 when a landholder died, his heir, if of age, had to pay a fee called "livery" to the Crown before taking possession of the land. If underage, the heir became a ward of the Crown. Crown jurisdiction was determined by an "inquisition post mortem." Records of inquisitions may list heirs, their relationships to the deceased, and land holdings. (See the "Land and Property" section of this outline.) The practice of selling the Crown’s guardianship to a third party led to the Court of Wards and Liveries, which was a source of funds for the government.

Before 1750 heirs often did not prove wills in order to avoid court costs. The will was often kept in case someone later objected to the property’s distribution. As a result, wills were sometimes probated many years after the testator’s death (one was as late as 76 years later). Some archives have collections of unproved wills. Other wills may be among family papers.

Until 1833 real property could be "entailed." This specified how property would be inherited in the future. An entail prevented subsequent inheritors from bequeathing the property to anyone except the heirs specified in the original entail.

Guardianship

When a father or widow died leaving minor children, relatives usually took the children without court sanction. Sometimes the court appointed a guardian or curator to look after the children’s interests until they were 21. If a child was under marriageable age (12 for girls and 14 for boys), guardianship was called "tuition." If the child was of marriageable age but under 21, it was called "curation."

The cities of London, Bristol, and Exeter had special orphans courts. Records from these courts appear in the Place Search of the Family History Library Catalog under:

ENGLAND, [COUNTY] - ORPHANS AND ORPHANAGES

ENGLAND, [COUNTY], [CITY or PARISH] - ORPHANS AND ORPHANAGES

Probating a Will

Usually the location of the deceased’s property determined which court had jurisdiction (see "Determining the Court" in this section of the outline). The probate process began by presenting the will to the court. The court recorded a probate act authorizing executors to carry out the provisions of the will. The original will was endorsed and filed in the court’s records. A handwritten copy was given to the executors. (Before 1600 the executors may have received the original.) The clerk may also have copied the will in a book of registered wills.

The administrator, or executor, had one year to produce an inventory of personal property, which the court recorded. Inventories were less common after 1730. Many before that date have been lost or destroyed.

If a person did not agree with how the court handled the will, that person could appeal to a higher court. This led to additional documents in the court of appeal, including assignation books (calendars of petitions of appeal, annotated with action taken) and other documents. Unless a complaint was filed, there were usually no further court records. Probating a will could take years, but it was usually completed in a few weeks.

Pre-1858 Probate Courts

Prior to 1858 the Church of England probated the estates of deceased persons. There were over 300 church probate courts in a hierarchy of jurisdiction and importance. A higher court had jurisdiction when the testator owned property within the jurisdiction of two or more lower courts. Usually the court with primary jurisdiction probated the will, but wealth, status, and convenience could have affected which court was used. The hierarchy of jurisdictions is as follows:

Peculiar courts:  Peculiar courts, manor courts, or other special courts had limited jurisdiction over small areas (sometimes just one parish). Most of England was not within the jurisdiction of any peculiar court.

Archdeaconry courts:  Archdeaconries were divisions of a Church of England diocese, and Archdeaconry courts were common probate jurisdictions in most dioceses. However, the diocese of York was divided into rural deaneries.

Bishops’ courts:  Also called Episcopal, Commissary, Diocesan, or Consistory courts, bishops' courts were the highest court within each diocese.

Courts such as Court of the Dean and Chapter or Court of the Cathedral often acted on the bishop’s behalf. Records for these cases are often filed with their own court records.

Prerogative Courts:  The prerogative courts of York and Canterbury had jurisdiction when the deceased’s property was in more than one diocese.

The Prerogative Court of Canterbury, the highest court of all, was used for wills of testators who died or owned property outside of England, foreigners who owned property in England, military personnel, persons having property in more than one probate jurisdiction, and often for wealthier individuals.

If a court’s decision was disputed, additional records may be found among later records of the same court or in a court of higher jurisdiction.

Courts of appeal:  There were three general courts of appeal. Appeals from the Prerogative Court of Canterbury were to the Court of Arches (of Canterbury). Appeals from the Prerogative Court of York were to the Chancery Court of the Archbishop of York, then to the Prerogative Court of Canterbury. Final appeals from all courts were to the Pope until 1533 and then to the Court of Delegates until 1831. After 1831 final appeals were made to the Privy Council.

Records of the Court of Arches start in 1660. Many of this court’s records are available on microfiche and are indexed in The Index Library. (Family History Library book 942 B4b, v. 85.)

Locating Probate Records

There are three steps to locating probate records.

  • Determine when and where the will might have been proved.
  • Determine the court or courts that had jurisdiction.
  • Search the indexes and records of the court or courts.

What You Are Looking For

You are looking for a pre-1858 probate record for one of your ancestors, which could be a will or an administration with related documents. The information you will find varies from record to record. The records may provide: 

  • Names of heirs.
  • Other family members.
  • Witnesses.
  • Guardians.
  • Relationships.
  • Residences.
  • Property names.
  • An inventory of the deceased's personal property.

Determining the Court

There are several probate courts having jurisidiction in an English county. Articles in this Wiki will tell you how to discover the names of the courts having jurisdiction over your place, and details about the records. To find one of these articles, type the title (name of the county) Probate Records in the search box. For example, if you want to learn about probates in Cumberland, search for the title Cumberland Probate Records. 

Call numbers for the records in the Family History Library can be found in the library's catalog.  For a current listing of probate records and indexes, follow these instructions.

  1. Go to the catalog and click Place Search.
  2. Type the name of the county in the "Place" box and England in the "Part of" box, and click Search.
  3. Click the locality.
  4. Scroll down and click the topic Probate Records or Probate Records-Indexes.
  5. Click a title on the Topic Details screen for a court.
  6. Click the View Film Notes button in the top right corner to find the film number. If the button isn't there, the item isn't on film and a book number will be given.

A court may also be determined by using the sources listed under the heading "Records Not at the Family History Library" in this section. From 1796 to 1858, Estate Duty Indexes can be used to determine the court (see the heading, "Indexes" that follows for more information).

Ecclesiastical jurisdictions, which help determine the court, are given in Samuel Lewis’s Topographical Dictionary of England (see the Gazetteers article) and Frank Smith’s A Genealogical Gazetteer of England.

For more information, see sections below: Indexes; and Finding Records in the Family History Library.

Principal Probate Registry

On 12 January 1858, a network of civil courts called probate registries replaced the ecclesiastical probate courts. Read more about Principal Probate Registry records.

Estate Duty Wills and Administrations

Starting in 1796, a tax or death duty was payable on many estates with a certain value.  Read more about Death or Estate Duty Wills