Scotland Probate Records

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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 and guardian, relationships, residences, inventories of the estate (including household goods), and names of witnesses.
+
Scotland has no 'probate' records - the term is 'confirmation.' The primary document is called a 'testament.'
  
These records are very helpful because probate actions were recorded long before birth, marriage, and death registration.
+
== Historical Background  ==
  
Probate records were not created for every person who died. They were made primarily by the middle and upper classes, most of whom were nobility, gentry, merchants, or tradesmen. However, probate records are a very valuable source not to be overlooked.
+
Testaments are court records dealing with the distribution of a person’s estate after death. These records can be very helpful because they were recorded long before statutory birth, marriage, and death registration began in 1855. Testaments were made primarily by the middle and upper classes, most of whom were nobility, gentry, merchants, or tradesmen. However, they are a very valuable source not to be overlooked regardless of the social standing of your ancestors.  
  
=== General Historical Background ===
+
Information recorded in testaments may include the death date, names of heirs and guardian, relationships, residences, inventories of the estate (including household goods), and names of witnesses. On the other hand, as there were very strict rules about the distribution of ''moveable'' property, there was no need to name a widow/widower or children, and often they are not named at all.
  
In Scotland before 1868, it was not possible to leave land to a person by using a will. It was only possible to give other types of property, known as moveable property, by means of a testament. There are two types of testaments:
+
Essentially, a surviving spouse had to inherit a third, the children one third and the deceased could dispose of the last third (''the deid's part'') by a ''latterwill'' or ''legacie''. There were further rules to complicate matters, but that's the essentials of it.  
  
* If a person died leaving a testament that named an executor, the document confirming that executorship and the attached testament is called a testament-testamentar.
+
=== Movable Property Only  ===
* If a person died without leaving a testament and the court appointed an executor to administer the estate, then the confirming document is called a testament- dative.
+
  
To inherit unmovable property such as land, heirs had to prove in court their right to inherit. The records granting these rights are called services of heirs. Records of actual transfers of land are called sasines. You will find more information about these records in the "[[Scotland Land and Property|Land and Property]]" section of this outline.
+
In Scotland before 1868, it was not possible to leave ''immoveable'' property (land, buildings, titles or other ''heritables'') to a person by means of a will. It was only possible to give personal property, known as ''moveable'' property, by means of a testament.  
  
=== Determining the Court ===
+
There are two types of testaments:
  
Before the Scottish Reformation and the establishment of the Presbyterian Church in 1592, confirmation of testaments was the prerogative of Episcopal (bishop’s) courts. Their subordinates, called official or commissariat courts actually carried out the probate function.
+
*If a person died leaving a testament that named an executor, the document confirming that executorship and the attached testament is called a ''testament testamentar''. This will include a ''latterwill'' or ''legacie'' expressing the deceased's wishes.
 +
*If a person died without leaving a testament and the court appointed an executor to administer the estate, then the confirming document is called a ''testament dative''.
 +
*Both of these will also contain an ''inventar'' (inventory of moveable property)
  
After the reformation in 1560, fifteen commissariats were established by royal authority. The principal commissariat court was in Edinburgh, and it had both local and general jurisdiction. The territorial extent of the commissariat courts paid little attention to county boundaries.
+
=== Immovable Property  ===
  
To help you determine which commissariat court had jurisdiction over which parishes and counties, see the following guides:
+
To inherit immovable property such as land, heirs had to prove to an ''Inquisition'' (essentially a jury of local people) their right to inherit. The records granting these rights are called [[Service of Heirs or Retours|''retours'' or ''services of heirs'']]. Records of actual transfers of land are called ''[[Sasines|sasines]]''. You will find more information about these records in the [[Scotland Land and Property|Land and Property]] section of the Wiki.
  
''Testaments and Commissariat Records of Scotland.'' Salt Lake City, Utah: Genealogical Society of Utah, 1972. (FHL book 941 P2gs; fiche 6054479.)
+
== Determining Court Jurisdictions  ==
  
Cecil Sinclair. ''Tracing Your Scottish Ancestors: A Guide to Ancestry Research in the Scottish Record Office''. Edinburgh, Scotland: Her Magesty’s Stationery Office, 1990. (FHL book 941 D27s).
+
Before the Scottish Reformation and the establishment of the Presbyterian Church in 1592, confirmation of testaments was the prerogative of Episcopal (bishop’s) courts. Their subordinates, called official or ''commissariat ''courts actually carried out the probate function.  
  
After 1823, testaments were proven by commissariat departments within the sheriff courts. The boundaries of these courts’ jurisdiction is the same as the county boundaries, but the names of the courts are not necessarily the same as the names of the counties.
+
After the reformation in 1560, fifteen (eventually 22) commissariats were established by royal authority. The principal commissariat court was in Edinburgh, and it had both local and general jurisdiction. The territorial extent of the commissariat courts paid little attention to county boundaries. This system stayed in force until the end of 1823. 
  
To determine a court after 1823 you need only know in which county your ancestor lived. You can then use the records of the sheriff court for that county. Lists of the counties and their sheriff courts are found in the guides mentioned previously.
+
To help you determine which commissariat court had jurisdiction over which parishes and counties, go to the ''[http://www.scotlandspeople.gov.uk/content/help/index.aspx?r=551&636 ScotlandsPeople]'' website and its [http://scotlandspeople.gov.uk/content/help/index.aspx?r=551&636 'Courts Map'] page, which identifies which courts operate in a given county by clicking on the appropriate county; or see the following guides:
  
The commissariats were absorbed by the sheriff courts, which now handles executory matters.
+
*''Testaments and Commissariat Records of Scotland.'' Salt Lake City, Utah: Genealogical Society of Utah, 1972. (Family History Library book {{FHL|425488|title-id|disp=941 P2gs; fiche 6054479}}.)
 +
*Cecil Sinclair. ''Tracing Your Scottish Ancestors: A Guide to Ancestry Research in the Scottish Record Office''. Edinburgh, Scotland: Her Magesty’s Stationery Office, 1990. (Family History Library book {{FHL|941 D27s|disp=941 D27s}}). Identifies court(s) by county along with ending dates for Commissariot and beginning dates for Sheriffs Court, which often overlap.
 +
*Kathleen Cory. ''Tracing Your Scottish Ancestors, Third Edition''. Baltimore, MD: Genealogical Publishing Company, 2004. Appendix III provides a table listing all parishes, among other things identifying Commissariot(s) which included that parish, and date of first testament or inventory for the parish.
  
=== Finding Probate Records ===
+
But bear in mind there was no compulsion to have a testament confirmed in any particular commissariat, and many chose to use the Edinburgh court (as the premier one). So it may be necessary to search them all.
  
The original records of the commissariat and sheriff courts are housed at the Scottish Record Office in Edinburgh (see the "[[Scotland Archives and Libraries|Archives and Libraries]]" section for the address).
+
After 1823 (the system took a few years to fully evolve), testaments were confirmed by commissariat departments within the sheriff courts. The boundaries of these courts’ jurisdictions are the same as the county boundaries, but the names of the courts are not necessarily the same as the names of the counties.  
  
The Family History Library has microfilm copies of the commissariat court records to 1823 and some sheriff court records. To find these records, look in the Locality Search of the [http://www.familysearch.org/Eng/Library/FHLC/frameset_fhlc.asp Family History Library Catalog] under:
+
To determine a court after 1823 you need only know in which county your ancestor lived. You can then use the records of the sheriff court for that county. Lists of the counties and their sheriff courts are found on the website and in the guides mentioned above. This list comes from [http://scotlandspeople.gov.uk/Content/Help/index.aspx?r=551&571 ScotlandsPeople]. 
  
SCOTLAND - PROBATE RECORDS
+
In 1876 the commissariats were absorbed by the sheriff courts, which now handle executory matters.
  
SCOTLAND, [COUNTY] - PROBATE RECORDS
+
=== Finding Testamentary Records  ===
  
'''Scottish Archives Network (SCAN):'''
+
The original records of the commissariat and sheriff courts are housed at the [http://www.nas.gov.uk/ National Archives of Scotland] in Edinburgh.
  
The Scottish Archives Network (SCAN) has created a fully searchable index to wills and testaments.&nbsp;It is available online through the ScotlandsPeople web site (see Indexes below). You must register to use the website, then access to the probate index is free.&nbsp;You may pay to view a copy of the probate records if you wish,then you can print it on your computer.&nbsp; <!--{12045650923285} --><!--{12045650923286} --><!--{12045650923287} -->
+
The Family History Library has microfilm copies of the commissariat court records to 1823 and some sheriff court records. To find these records, look in the Locality Search of the [http://www.familysearch.org/Eng/Library/FHLC/frameset_fhlc.asp Family History Library Catalog] under:
<!--{12045650923288} -->
+
  
=== Indexes to Probate Records ===
+
*Scotland -- Probate records
 +
*Scotland, [County] -- Probate records
  
To find a probate record of interest, you should first search available indexes. To access the free online index available through the ScotlandsPeople website, click [[Search for Scottish Testaments on Scotland’s People|here]].
+
You may also access testamentary records online through the ScotlandsPeople web site (see Indexes below).&nbsp;
  
'''Indexes to Commissariat Records'''
+
=== Online indexes to Testamentary Records ===
  
The Scottish Record Society at http://www.scottishrecordsassociation.org/&nbsp;has published indexes to the Commissariat Court records to 1800 (FHL book 941 B4sr). Other indexes are available for 1800 to 1823 and for 1800 to 1829 for Edinburgh, Haddington, and Linlithgow.
+
Indexes are being compiled for these wonderful records:
  
You can find Family History Library film numbers for indexes to probate records in:
+
[http://www.scotlandspeople.gov.uk/content/help/index.aspx?r=554&407 www.Scotlandspeople.gov.uk 1513-1901] The wills &amp; testaments index contains over 611,000 index entries to Scottish wills and testaments dating from 1513 to 1901
  
''Testaments and Commissariat Records of Scotland.'' Salt Lake City, Utah: Genealogical Society of Utah, 1972. (FHL book 941 P2gs; fiche 6054479.)
+
[http://www.ancestry.co.uk www.ancestry.co.uk][http://search.ancestry.co.uk/search/db.aspx?dbid=1904 1861-1941 is a patial index]
  
You can also look in the Locality Search of the Family History Library Catalog under:
+
<br>
  
SCOTLAND - PROBATE RECORDS - INDEXES
+
=== Indexes to Testamentary Records  ===
  
SCOTLAND, [COUNTY] - PROBATE RECORDS - INDEXES
+
To find a record of interest, you should first search an index. Scottish testamentary records, for 1513-1901, are indexed online on the [http://www.scotlandspeople.gov.uk ScotlandsPeople] website.&nbsp;You must register to use the website then it is free to search the index.&nbsp;Once you have found a probate of interest in the index, you may pay to view a copy of the records if you wish, then you can print and/or save it to your computer.
  
'''Indexes to Sheriff’s Court Records'''
+
Other printed and microfilmed indexes are available at the Family History Library.&nbsp; To find them listed in the library's [https://www.familysearch.org/#form=catalog catalog], do a Place search for:
  
'''1824 to 1845.''' Indexes for sheriff court records for these years are available only in Scotland at the Scottish Record Office (see the "Archives and Libraries" section of this outline for the address).
+
*Scotland -- Probate records--Indexes
 +
*Scotland, [County] -- Probate records--Indexes
  
'''1846 to 1867.''' For indexes to sheriff’s court records from 1846 to 1845, see:
+
From 1876-1936, these books can be located through the [https://www.familysearch.org/#form=catalog Family History Library catalog]
  
''Indexes to Personal Estates of Defuncts''. Edinburgh, Scotland: Scottish Record Office, 1985. (FHL films 1368215-17.) These are indexes to the inventories of the estates of the deceased.
+
=== Difficulties in Finding a&nbsp;Testament  ===
  
When you find a reference to an inventory, you can find a Family History Library microfilm number in:
+
If you have difficulty locating a testament, keep these points in mind:  
  
''Testaments and Commissariat Courts of Scotland''. Salt Lake City, Utah: Genealogical Society of Utah, 1972. (FHL book 941 P2gs; fiche 6054479.)
+
*Only a small percentage of the population of Scotland left testaments.  
 +
*A person’s pre-1823 testament could have been proved in the Commissary Court of Edinburgh, or any other commissariat, &nbsp;even though he or she lived elsewhere in the country.  
 +
*A person’s post-1823 testament could have been proved in the Sheriff Court of Edinburgh even though he or she lived elsewhere in the country.
 +
*A person who died outside of Scotland but who owned property within Scotland would have his or her testament proved in an Edinburgh court&nbsp;and sometimes also in an English court, such as&nbsp;the Prerogative Court of Canterbury (available at [http://www.nationalarchives.gov.uk/documentsonline/wills.asp?WT.hp=Wills Documents Online ]at The UK National Archives website).
 +
*Testaments for women may be under their maiden name..
  
You can also use the Locality Search of the Family History Center Catalog to see if the library has any records for your county of interest.
+
=== Help to Understanding the Records  ===
  
If the Family History Library does not have any records for the county you want, you will need to write to the Scottish Record Office to determine if a testament exists and to obtain a copy.
+
*Burness, Lawrence. A Scottish Genealogist’s Glossary. Aberdeen: Aberdeen &amp; North East Scotland Family History Society, c1990. (FHL British Ref 941 D27bL)
 +
*Burness, Lawrence. A Scottish Historian’s Glossary. [Scotland]: Scottish Association of Family History Societies, c1997. (FHL British book 941 H26b)
 +
*Encyclopedia of the Laws of Scotland. 16 vols and 2 supps. Edinburgh: W. Green &amp; Son, Ltd., 1926. (FHL British book 941 P36e) Note: Vol. 11 is available at [http://www.archive.org/details/greensencyclopae11chis archive.org]
 +
*Gibb, Andrew Dewar. Student’s Glossary of Scottish Legal Terms. Edinburgh: W. Green &amp; Son, Ltd., 1946 (FHL British book 941 P36g)
 +
*Gouldesbrough, Peter. Formulary of Old Scots Legal Documents. Vol. 36 Edinburgh: The Stair Society, 1985. (FHL British book 941 B4st v. 36)
  
'''1868 to 1875.''' Indexes and probate records for these years are available only at the Scottish Record Office.
+
=== Learn More About Testamentary Records  ===
  
'''1876 to 1959.''' There is a series of annual printed indexes called:
+
To read more about Scottish testaments, go to the appropriate pages on these websites:  
  
''Calendar of Confirmations and Inventories''. Edinburgh, Scotland: Her Majesty’s Stationery Office, n.d. (FHL book Q941 P2s; films 990433, 990447-68, and 1440931-6.) The library has the calendars for 1876 to 1936. If you find a reference to a probate record in the calendars, you will have to write to the Scottish Record Office to obtain a copy of the probate record. <!--{12045654514214} --><!--{12045654514215} --><!--{12045654514216} --><!--{12045654514217} -->
+
[http://www.scotlandspeople.gov.uk/content/help/index.aspx?r=554&407 Scotland’s People] <br>[http://www.nas.gov.uk/guides/wills.asp National Archives of Scotland]
<!--{12045654514218} -->
+
  
=== Difficulties in Finding a Probate Record ===
+
Return to the [[Scotland|Scotland ]].
  
If you have difficulty locating a probate record, keep these points in mind:
+
{{Template:Pros-Scot}}
  
* Only a small percentage of the population of Scotland left testaments.
+
{{Place|Scotland}}
* A person’s pre-1823 testament could have been proved in the Commissary Court of Edinburgh even though he or she lived elsewhere in the country.
+
* A person’s post-1823 testament could have been proved in the Sheriff Court of Edinburgh even though he or she lived elsewhere in the country.
+
* A person who died outside of Scotland but who owned property within Scotland would have his or her testament proved in an Edinburgh court or the Prerogative Court of Canterbury.
+
* Testaments for women may be under their maiden name.
+
  
[[Category:Scotland]]<br>
+
[[Category:Scotland|Probate Records]]

Revision as of 18:38, 12 September 2012

Scotland has no 'probate' records - the term is 'confirmation.' The primary document is called a 'testament.'

Contents

Historical Background

Testaments are court records dealing with the distribution of a person’s estate after death. These records can be very helpful because they were recorded long before statutory birth, marriage, and death registration began in 1855. Testaments were made primarily by the middle and upper classes, most of whom were nobility, gentry, merchants, or tradesmen. However, they are a very valuable source not to be overlooked regardless of the social standing of your ancestors.

Information recorded in testaments may include the death date, names of heirs and guardian, relationships, residences, inventories of the estate (including household goods), and names of witnesses. On the other hand, as there were very strict rules about the distribution of moveable property, there was no need to name a widow/widower or children, and often they are not named at all.

Essentially, a surviving spouse had to inherit a third, the children one third and the deceased could dispose of the last third (the deid's part) by a latterwill or legacie. There were further rules to complicate matters, but that's the essentials of it.

Movable Property Only

In Scotland before 1868, it was not possible to leave immoveable property (land, buildings, titles or other heritables) to a person by means of a will. It was only possible to give personal property, known as moveable property, by means of a testament.

There are two types of testaments:

  • If a person died leaving a testament that named an executor, the document confirming that executorship and the attached testament is called a testament testamentar. This will include a latterwill or legacie expressing the deceased's wishes.
  • If a person died without leaving a testament and the court appointed an executor to administer the estate, then the confirming document is called a testament dative.
  • Both of these will also contain an inventar (inventory of moveable property)

Immovable Property

To inherit immovable property such as land, heirs had to prove to an Inquisition (essentially a jury of local people) their right to inherit. The records granting these rights are called retours or services of heirs. Records of actual transfers of land are called sasines. You will find more information about these records in the Land and Property section of the Wiki.

Determining Court Jurisdictions

Before the Scottish Reformation and the establishment of the Presbyterian Church in 1592, confirmation of testaments was the prerogative of Episcopal (bishop’s) courts. Their subordinates, called official or commissariat courts actually carried out the probate function.

After the reformation in 1560, fifteen (eventually 22) commissariats were established by royal authority. The principal commissariat court was in Edinburgh, and it had both local and general jurisdiction. The territorial extent of the commissariat courts paid little attention to county boundaries. This system stayed in force until the end of 1823. 

To help you determine which commissariat court had jurisdiction over which parishes and counties, go to the ScotlandsPeople website and its 'Courts Map' page, which identifies which courts operate in a given county by clicking on the appropriate county; or see the following guides:

  • Testaments and Commissariat Records of Scotland. Salt Lake City, Utah: Genealogical Society of Utah, 1972. (Family History Library book 941 P2gs; fiche 6054479.)
  • Cecil Sinclair. Tracing Your Scottish Ancestors: A Guide to Ancestry Research in the Scottish Record Office. Edinburgh, Scotland: Her Magesty’s Stationery Office, 1990. (Family History Library book 941 D27s). Identifies court(s) by county along with ending dates for Commissariot and beginning dates for Sheriffs Court, which often overlap.
  • Kathleen Cory. Tracing Your Scottish Ancestors, Third Edition. Baltimore, MD: Genealogical Publishing Company, 2004. Appendix III provides a table listing all parishes, among other things identifying Commissariot(s) which included that parish, and date of first testament or inventory for the parish.

But bear in mind there was no compulsion to have a testament confirmed in any particular commissariat, and many chose to use the Edinburgh court (as the premier one). So it may be necessary to search them all.

After 1823 (the system took a few years to fully evolve), testaments were confirmed by commissariat departments within the sheriff courts. The boundaries of these courts’ jurisdictions are the same as the county boundaries, but the names of the courts are not necessarily the same as the names of the counties.

To determine a court after 1823 you need only know in which county your ancestor lived. You can then use the records of the sheriff court for that county. Lists of the counties and their sheriff courts are found on the website and in the guides mentioned above. This list comes from ScotlandsPeople

In 1876 the commissariats were absorbed by the sheriff courts, which now handle executory matters.

Finding Testamentary Records

The original records of the commissariat and sheriff courts are housed at the National Archives of Scotland in Edinburgh.

The Family History Library has microfilm copies of the commissariat court records to 1823 and some sheriff court records. To find these records, look in the Locality Search of the Family History Library Catalog under:

  • Scotland -- Probate records
  • Scotland, [County] -- Probate records

You may also access testamentary records online through the ScotlandsPeople web site (see Indexes below). 

Online indexes to Testamentary Records

Indexes are being compiled for these wonderful records:

www.Scotlandspeople.gov.uk 1513-1901 The wills & testaments index contains over 611,000 index entries to Scottish wills and testaments dating from 1513 to 1901

www.ancestry.co.uk1861-1941 is a patial index


Indexes to Testamentary Records

To find a record of interest, you should first search an index. Scottish testamentary records, for 1513-1901, are indexed online on the ScotlandsPeople website. You must register to use the website then it is free to search the index. Once you have found a probate of interest in the index, you may pay to view a copy of the records if you wish, then you can print and/or save it to your computer.

Other printed and microfilmed indexes are available at the Family History Library.  To find them listed in the library's catalog, do a Place search for:

  • Scotland -- Probate records--Indexes
  • Scotland, [County] -- Probate records--Indexes

From 1876-1936, these books can be located through the Family History Library catalog

Difficulties in Finding a Testament

If you have difficulty locating a testament, keep these points in mind:

  • Only a small percentage of the population of Scotland left testaments.
  • A person’s pre-1823 testament could have been proved in the Commissary Court of Edinburgh, or any other commissariat,  even though he or she lived elsewhere in the country.
  • A person’s post-1823 testament could have been proved in the Sheriff Court of Edinburgh even though he or she lived elsewhere in the country.
  • A person who died outside of Scotland but who owned property within Scotland would have his or her testament proved in an Edinburgh court and sometimes also in an English court, such as the Prerogative Court of Canterbury (available at Documents Online at The UK National Archives website).
  • Testaments for women may be under their maiden name..

Help to Understanding the Records

  • Burness, Lawrence. A Scottish Genealogist’s Glossary. Aberdeen: Aberdeen & North East Scotland Family History Society, c1990. (FHL British Ref 941 D27bL)
  • Burness, Lawrence. A Scottish Historian’s Glossary. [Scotland]: Scottish Association of Family History Societies, c1997. (FHL British book 941 H26b)
  • Encyclopedia of the Laws of Scotland. 16 vols and 2 supps. Edinburgh: W. Green & Son, Ltd., 1926. (FHL British book 941 P36e) Note: Vol. 11 is available at archive.org
  • Gibb, Andrew Dewar. Student’s Glossary of Scottish Legal Terms. Edinburgh: W. Green & Son, Ltd., 1946 (FHL British book 941 P36g)
  • Gouldesbrough, Peter. Formulary of Old Scots Legal Documents. Vol. 36 Edinburgh: The Stair Society, 1985. (FHL British book 941 B4st v. 36)

Learn More About Testamentary Records

To read more about Scottish testaments, go to the appropriate pages on these websites:

Scotland’s People
National Archives of Scotland

Return to the Scotland .