Scotland Probate Records

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, Utah: 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, Scotland: 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 RECORDS

SCOTLAND, [COUNTY] - PROBATE RECORDS

Scottish Archives Network (SCAN):

The Scottish Archives Network (SCAN) has created a fully searchable index to wills and testaments. 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. You may

pay to view a copy of the probate records if you wish, then you can print it on your computer.

Indexes to Probate Records
Indexes to Commissariat Records

To find a probate record of interest, you should first search available indexes. Many probate records have been indexed.

The Scottish Record Society at http://www.scottishrecordsassociation.org/ 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.

You can find Family History Library film numbers for indexes to probate records in:

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

You can also look in the Locality Search of the Family History Library Catalog under:

SCOTLAND - PROBATE RECORDS - INDEXES

SCOTLAND, [COUNTY] - PROBATE RECORDS - INDEXES

Indexes to Sheriff’s Court Records

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).

1846 to 1867. For indexes to sheriff’s court records from 1846 to 1845, see:

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.

When you find a reference to an inventory, you can find a Family History Library microfilm number in:

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

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.

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.

1868 to 1875. Indexes and probate records for these years are available only at the Scottish Record Office.

1876 to 1959. There is a series of annual printed indexes called:

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.

Difficulties in Finding a Probate Record
If you have difficulty locating a probate record, 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 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.