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.

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. 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.

General Historical Background

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:

• 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.
• 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 “Land and Property” section of this outline.

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 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:

Testaments and Commissariat Records of Scotland. Salt Lake City: Genealogical Society of Utah, 1972. (FHL book 941 P2gs; fiche 6054479.)

Cecil Sinclair. Tracing Your Scottish Ancestors: A Guide to Ancestry Research in the Scottish Record Office. Edinburgh: Her Magesty’s Stationery Office, 1990. (FHL book 941 D27s).

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.

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.

The commissariats were absorbed by the sheriff courts, which now handles executory matters.

Finding Probate Records

The original records of the commissariat and sheriff courts are housed at the Scottish Record Office in Edinburgh (see the “Archives and Libraries” section for the address).

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 RECORDSSCOTLAND, [COUNTY] - PROBATE RECORDS