Difference between revisions of "Scotland Probate Records"

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Scotland has no 'probate' records - the term is 'confirmation.' The primary document is called a 'testament.'  
 
Scotland has no 'probate' records - the term is 'confirmation.' The primary document is called a 'testament.'  
  
== General Historical Background  ==
+
== 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.  
 
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.  
+
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, children a third and the deceased could dispose of a further third (the 'deid's part') by a 'latterwill' or 'legacie.' There were further rules to complicate matters, but that's the essentials of it.  
+
Essentially, a surviving spouse had to inherit a third, children a third and the deceased could dispose of a further 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.
  
=== Movable Property Only ===
+
There are two types of testaments:
  
In Scotland before 1868, it was not possible to leave 'immoveable' property (land, buildings, titles or other 'heritables') to a person by using a will. It was only possible to give personal property, known as 'moveable' property, by means of a testament.  
+
*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''.  
There are two types of testaments:
+
*Both of these will also contain an ''inventar'' (inventory of moveable property)
  
*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.
+
=== Immovable Property  ===
*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)
 
  
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 of 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.  
+
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 [[Scotland Land and Property|Land and Property]] section of the Wiki.  
  
=== Determining the Court  ===
+
== Determining the Court  ==
  
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.  
+
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.  
 
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.  
  
To help you determine which commissariat court had jurisdiction over which parishes and counties, see the following guides:
+
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 ScotlandsPeople]'' website and its 'Help & Other Resources' page, or see the following guides:
 
 
''Testaments and Commissariat Records of Scotland.'' Salt Lake City, Utah: Genealogical Society of Utah, 1972. (Family Hitory Library [http://www.familysearch.org/eng/library/fhlcatalog/supermainframeset.asp?display=titledetails&titleno=425488&disp=Testaments+and+commissariot+courts+of+Sc%20%20&columns=*,0,0 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 [http://www.familysearch.org/eng/library/fhlcatalog/supermainframeset.asp?display=titlehitlist&columns=*%2C0%2C0&callno=941+D27s 941 D27s]).  
+
*''Testaments and Commissariat Records of Scotland.'' Salt Lake City, Utah: Genealogical Society of Utah, 1972. (Family History Library book [http://www.familysearch.org/eng/library/fhlcatalog/supermainframeset.asp?display=titledetails&titleno=425488&disp=Testaments+and+commissariot+courts+of+Sc%20%20&columns=*,0,0 941 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 [http://www.familysearch.org/eng/library/fhlcatalog/supermainframeset.asp?display=titlehitlist&columns=*%2C0%2C0&callno=941+D27s 941 D27s]).
  
 
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.  
 
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.  
Line 39: Line 38:
 
After about 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.  
 
After about 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 in the guides mentioned previously.  
+
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.  
  
 
In 1876 the commissariats were absorbed by the sheriff courts, which now handle executory matters.  
 
In 1876 the commissariats were absorbed by the sheriff courts, which now handle executory matters.  
Line 45: Line 44:
 
=== Finding Testamentary Records  ===
 
=== Finding Testamentary Records  ===
  
The original records of the commissariat and sheriff courts are housed at the National Archives of Scotland in Edinburgh (see the "[[Scotland Archives and Libraries|Archives and Libraries]]" section for the address).  
+
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 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:  
 
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:  
  
Scotland -- Probate records (although Scotland has no legal concept of "probate", which means "proving" - in Scotland, it's Confirmation)
+
*Scotland -- Probate records  
 +
*Scotland, [County] -- Probate records
  
Scotland, [County] -- Probate records
+
You may also access testamentary records online through the ScotlandsPeople web site (see Indexes below).   
 
 
You may also access testamentary records online through the ScotlandsPeople web site (see Indexes below). You must register to use the website.  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 Testamentary Records  ===
 
=== 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 [http://www.scotlandspeople.gov.uk ScotlandsPeople] website.  It is free to search the index.  
+
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. 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 [http://www.familysearch.org/Eng/Library/FHLC/frameset_fhlc.asp catalog], do a Place search for:  
 
Other printed and microfilmed indexes are available at the Family History Library.  To find them listed in the library's [http://www.familysearch.org/Eng/Library/FHLC/frameset_fhlc.asp catalog], do a Place search for:  
  
Scotland -- Probate records--Indexes  
+
*Scotland -- Probate records--Indexes  
 
+
*Scotland, [County] -- Probate records--Indexes
Scotland, [County] -- Probate records--Indexes  
 
  
 
From 1876-1936, these books can be located through the Family History Library catalog [http://www.familysearch.org/eng/library/fhlcatalog/supermainframeset.asp?display=titlefilmnotes&columns=*%2C0%2C0&titleno=307501&disp=Calendar+of+confirmations+and+inventorie++]  
 
From 1876-1936, these books can be located through the Family History Library catalog [http://www.familysearch.org/eng/library/fhlcatalog/supermainframeset.asp?display=titlefilmnotes&columns=*%2C0%2C0&titleno=307501&disp=Calendar+of+confirmations+and+inventorie++]  

Revision as of 00:00, 18 February 2010

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

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, children a third and the deceased could dispose of a further 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 the Court

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.

To help you determine which commissariat court had jurisdiction over which parishes and counties, go to the ScotlandsPeople website and its 'Help & Other Resources' page, 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).

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 about 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.

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). 

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 [1]

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 as "PCC Wills" at The National Archives, Kew, and on their website).
  • Testaments for women may be under their maiden name..

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 Portal page.