Probate Records: A Research Summary

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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 and guardian, relationship, residence, inventories of the estate (including trade and household goods), and names of witnesses.

These records are very helpful because probate actions were recorded long before 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% of English heads of households before 1858. However, as much as one-quarter 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:

Types of Probate Records

Will conveys real (immovable) property to heirs after an individual's death. A registered Will is an official copy made by a court clerk.

Testament conveys personal (moveable) property to heirs. The term will eventually referred to both a Will and a Testament.

Codicil is a signed, witnessed addition to a Will.

Administration, Letters of Administration, or Admon 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.

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

Inventory lists belongings and their values, including such items as household goods, tools, and personal items. Occupations are often mentioned.

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.

Bond is a written guarantee that a person will faithfully perform the tasks assigned to him by a probate court. The executors posted Testamentary Bonds, the administrator posted Administration Bonds, and the guardian of a minor child posted a Bond of Tuition or Curation.

Historical Background

The keeping of Wills and probate documents began as early as the 11th century, but few records survive before 1400. Probates were handled by the ecclesiastical courts until 1858. Key events include:

1642
to
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
to
1857
A tax (estate duty) was placed on all estates valued over £10, except those of military personnel
1858 The Principal Probate Registry replaced all earlier probate courts

Laws and Customs

The English system historically has allowed a portion of a person's property to be devisable 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.

Any free male over 14, unmarried female over 12, or widow of sound mind could leave a last Will and Testament except apostates, heretics, traitors, and suicides. 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 under age, 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. 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, sometimes Wills were probated many years after the testator's death (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.

Probating a Will

Usually the location of the deceased's property determined which court had jurisdiction. The probate process began by presenting the Will to the court. The court recorded a probate act authorizing executors to carry out the Will's provisions. 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, he 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

There were over 300 English 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 jurisdiction probated the Will, but wealth, convenience, and status often affected which court was used.

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 1832. After 1831, final appeals were made to the Privy Council.

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.

Post-1857 Probate Courts

On 11 January 1858, a network of courts called Probate Registries replaced all probate courts. All Wills and administrations are probated at district courts or at a central court in London, called the Principal Registry, which received copies of all the district court Wills.

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