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Ancestry Daily News
6/24/2003 - Archive
Probate in Scotland, 1500 to 1901
The Internet has transformed searching probate records in Scotland and the
change is definitely for the better. The Web-based finding aids and images are
excellent and a complex array of indexes no longer puzzles genealogists.
What Has Changed?
Until recently, indexes to testamentary records had to be explained in four
sections: before 1800, 1800 to 1823, 1823 to 1876, and after 1876. Distance
searchers using Family History Library resources on microfilm had a difficult
time. The search in Edinburgh was easier because all finding aids were accessible
at the National Archives (or as it used to be known, the Scottish Record Office).
Everyone faced the problems of index peculiarities; e.g., for the 1820s it was
wise to search the commissary and sheriff court records because the change was
not a distinct break.
Now there is a single online index, derived from the records and not from the
old indexes, covering the earliest surviving records to 1901 (more than half
a million). It is found at: www.scottishdocuments.com
What You Need to Know—Background
In practice it is possible to simply search the online index; in theory, and
to achieve the best success, it is necessary to understand some of the background.
Up until 1868 testamentary records relate only to the moveable goods of the
deceased; the inheritance of property was governed by another set of laws and
the records are known as services of heirs or retours. There were two types
of testaments: testament testamentar, which included a will, and testament dative,
which did not (i.e., the deceased died intestate). In both cases the court confirmed
the executor or the executrix (the purpose of the testament); there was usually
an inventory of the goods.
There was no requirement to go through this process and few people bothered
with the trouble and expense.
You should be aware of the names of the courts that held jurisdiction in the
area of your deceased ancestor. The court names changed; until 1823 they were
commissary courts; the probate function was then assigned to the sheriff courts.
Commissary court divisions were derived from the old Catholic dioceses of Scotland
so their boundaries do not coincide with county lines. Sheriff court jurisdictions
pretty much matched the counties; where there were two or more courts in a county
only one may have handled probate business. From 1876 a printed annual volume
summarized the confirmations in the sheriff courts. Lists of the counties and
sheriff courts of Scotland can be found at the Scottish Documents website.
At all times the Edinburgh court was a senior court that could be used by anyone
from anywhere in Scotland; also, it was the probate court for those who died
overseas.
What You Need to Know—Using Scottish Documents
If the name is unusual then geographic details and a range of years for the
search are less important. For a common name it is essential to set geographic
parameters and a range of years for your search. If prior to 1830 you need to
be aware of the boundaries of the commissariots; maps of these appear in the
"Phillimore Atlas and Index of Parish Registers" (C. Humphery-Smith,
3rd ed, 2003). Information about which commissary courts were in what counties,
and vice versa, can be found at the Scottish Documents website within the research
tools area. Include the Edinburgh court in every search.
The basic search permits both surname only and forename only searches; an exact
spelling option can be toggled on or off. The advanced search allows for the
addition of one or more of the following facts: the year range, a distinguishing
detail such as title, occupation or place, or the name of the court. The advanced
search also offers the option of setting out how the results will be sorted—by
surname, by first name, or by date.
You can search using only a place name or only an occupation. This is useful
because the testamentary records of an entire parish for a set period or of
all those of the same occupation could prove illuminating on family affairs
and relationships.
Reports of what the search found are set out in an easy to follow table format.
This gives the surname, forename, date, residence, court, and where applicable,
access to the online image of the original document. Where this is available
you can check the length before spending five pounds to see it; this charge
applies regardless of length.
Additional Advice
Explore the site because it offers some useful tools: a glossary of occupations,
handwriting assistance, forename variants, surname variants, and unusual words
and abbreviations found in the documents.
If you cannot find what you are looking for, consider these points: Mac/Mc names
should be searched for using both forms; name variants should be checked and
all listed options tried; be prepared to try other sources. Remember not many
people left testamentary records and of those that did, some were registered
in other places such as the Court of Session.
Make a note that you have carried out the search regardless of the result. Databases
online tend to encourage bad habits, such as dropping a name into a search box
and moving on without recording what's in the database and therefore what has
been searched. If you are simply trying your luck, do it properly—read
the related "Help" information, FAQs, and search tips. If a search
is thoroughly done and recorded it does not have to be repeated.
This is one of those searches that all doing Scottish research should undertake.
It is free, the database is complete to 1901 for names of testators (no beneficiaries
are in it), and although few are recorded there is a sufficient cross section
of social classes to make it a sensible step.
Sherry Irvine, CGRS, FSA (Scot) is an author, teacher, and lecturer specializing
in English and Scottish family history. She is the author of Your English
Ancestry (2nd ed, 1998) and Your Scottish Ancestry (1997) and she is
a regular contributor to several journals including Genealogical Computing.
Since 1996, she has been a study tour leader, course coordinator, and instructor
for the Institute of Genealogy and Historical Research at Samford University.
She teaches online for the family history program of Vermont College and has lectured
at conferences in Canada, the United States, and Australia. She is the president
of the Association of Professional Genealogists.
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