England Probate Records

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 guardians, relationships, residences, 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 percent of English heads of households before 1858. However, as much as one- fourth 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:


 * Omit the name of the eldest son who received his inheritance according to law; the names of others who had previously received their inheritance; or any deceased family members.
 * Mention children from a spouse’s previous marriage.
 * Mention a spouse who is not the parent of the children named.

Types of Probate Records
Will. Technically, a 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. A testament conveys personal (moveable) property to heirs. The term will eventually referred to both a will and a testament.

Codicil. A codicil is a signed, witnessed addition to a will.

Administration, Letters of Administration, or Admon. These 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. This record grants administration to someone else when the executor named in the will is deceased or is unwilling or unable to act as executor. A copy of the will is attached.

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

Act Book. An 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. A bond is a written guarantee that a person will faithfully perform the tasks assigned to him by a probate court. The executor posted a testamentary bond, the administrator posted an administration bond, and the guardian of a minor child posted a bond of tuition or curation.

General Historical Background
The keeping of wills and probate documents began as early as the eleventh century, but there are few records before 1400. Probates were handled by the ecclesiastical courts until 1858.

Some of the key events affecting probate record keeping are:

1642–1660:  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.

1796–1857:  A tax was placed on all estates valued over £10. This was called an estate duty.

1858:  The Principal Probate Registry, a civil government system, replaced all earlier probate courts.

Laws and Customs
The English system historically has allowed a portion of a person’s property to be divisible 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.

With the exception of apostates, heretics, traitors, and suicides, any free male over 14, unmarried female over 12, or widow of sound mind could leave a last will and testament. 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 (see "Types of Probate Records" in this section of the outline).

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 underage, 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. (See the "Land and Property" section of this outline.) 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, wills were sometimes probated many years after the testator’s death (one was 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.

Guardianship
When a father or widow died leaving minor children, relatives usually took the children without court sanction. Sometimes the court appointed a guardian or curator to look after the children’s interests until they were 21. If a child was under marriageable age (12 for girls and 14 for boys), guardianship was called "tuition." If the child was of marriageable age but under 21, it was called "curation."

The cities of London, Bristol, and Exeter had special orphans courts. Records from these courts appear in the Place Search of the Family History Library Catalog under:

ENGLAND, [COUNTY] - ORPHANS AND ORPHANAGES

ENGLAND, [COUNTY], [CITY or PARISH] - ORPHANS AND ORPHANAGES

Probating a Will
Usually the location of the deceased’s property determined which court had jurisdiction (see "Determining the Court" in this section of the outline). The probate process began by presenting the will to the court. The court recorded a probate act authorizing executors to carry out the provisions of the will. 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, that person 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
Prior to 1858 the Church of England probated the estates of deceased persons. There were over 300 church 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 primary jurisdiction probated the will, but wealth, status, and convenience could have affected which court was used. The hierarchy of jurisdictions is as follows:

Peculiar courts: Peculiar courts, manor courts, or other special courts had limited jurisdiction over small areas (sometimes just one parish). Most of England was not within the jurisdiction of any peculiar court.

Archdeaconry courts: Archdeaconries were divisions of a Church of England diocese, and Archdeaconry courts were common probate jurisdictions in most dioceses. However, the diocese of York was divided into rural deaneries.

Bishops’ courts: Also called Episcopal, Commissary, Diocesan, or Consistory courts, bishops' courts were the highest court within each diocese.

Courts such as Court of the Dean and Chapter or Court of the Cathedral often acted on the bishop’s behalf. Records for these cases are often filed with their own court records.

Prerogative Courts: The prerogative courts of York and Canterbury had jurisdiction when the deceased’s property was in more than one diocese.

The Prerogative Court of Canterbury, the highest court of all, was used for wills of testators who died or owned property outside of England, foreigners who owned property in England, military personnel, and often for wealthier individuals.

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.

Courts of appeal: 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 1831. After 1831 final appeals were made to the Privy Council.

Determining the Court
To determine the court for pre-1858 records, the Family History Library has a series of probate keys, (FHL book 942 S2ha Volumes 1–40; films 599217–222; fiche 6026312, 90 fiche).

Each probate key has two parts. The first is a research paper containing a color-coded map showing courts having jurisdiction over each area. The maps on the film and fiche copy of the probate keys are black and white, so it is not possible to use them to determine a court. It is necessary to use the paper copy of the maps. Many Family History Centers have paper copies of the maps (if a paper copy is not available, use other sources as indicated in the paragraphs that follow). At the Family History Library, use the book copy of the probate keys.

The second part of the probate key is a list of library call numbers for that county’s records. Many of the probate keys do not list recently acquired material. For a current listing of probate records and indexes, look in the Place Search of the Family History Library Catalog under:

ENGLAND, [COUNTY] - PROBATE RECORDS

A court may also be determined by using the sources listed under the heading "Records Not at the Family History Library" in this section. From 1796 to 1858, Estate Duty Indexes can be used to determine the court (see the heading, "Indexes" that follows for more information).

Ecclesiastical jurisdictions, which help determine the court, are given in Samuel Lewis’s Topographical Dictionary of England (see the "Gazetteers" section of this outline) and Frank Smith’s A Genealogical Gazetteer of England.

Post-1857 Probate Courts
Principal Probate Registry

On 11 January 1858, a network of civil courts called 'probate registries' replaced all ecclesiastical 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.

Estate Duty Wills and Administrations
Beginning in 1796 a tax was levied on probates of estates valued over £10. Copies of the probate documents were filed with the Estate Duty Office in London when the tax was paid. Various exceptions made over the years on who should pay the duty could have exempted the tax from being paid and a will from being filed. These records are especially helpful for research in the counties of Cornwall, Devon, and Somerset, where local probate records have been destroyed.

Locating Probate Records
There are three steps to locating probate records.


 * Determine when the will might have been proved.
 * Determine the court or courts that had jurisdiction.
 * Search the indexes and records of the court or courts.

Ecclesiastical Courts (pre 1858)
Some court records have published indexes. Others have handwritten indexes filmed with the records. The index is often a "calendar", a list organized by date with a separate section for each letter of the alphabet. Surnames with the same first letter are listed together but are not in alphabetical order.

An extensive collection of probate indexes are part of the following work:

The Index Library. London, England: British Record Society, 1888– (FHL book 942 B4b). This work is also listed in the Author/Title Search of the Family History Library Catalog under: THE INDEX LIBRARY

Other organizations, including family history societies, have also published indexes.

Principal Probate Registry (1857-1957)
Nationwide annual indexes to all wills and administrations of the Principal Probate Registry from 1858 to 1957 are on film at the Family History Library. They give the deceased’s full name and last address, death date, probate type and date, and estate value. Film numbers are in the Place Search of the Family History Library Catalog under: ENGLAND - PROBATE RECORDS

Estate duty
Registers from 1796 to 1858 have been indexed. These indexes are useful for locating wills and admons probated between these dates, even if you do not know your ancestor’s residence. Estate duty registers contain the deceased’s name, heirs, and executors as well as the court at which the will was proved. They sometimes include information not given in the original will.

Will Beneficiaries
Some estimate that only 5-10% of the population left a will. Those persons named in a will, a beneficiary, account for a much larger portion of the population. A few indexes are being made available that identify the persons mentioned in wills. For a list of know indexes to will beneficiaries read on...

Finding Probate Records at the Family History Library
The Family History Library has a large collection of probate records. Follow these instructions to find them. 1.   Go to www.familysearch.org

2.   Click the Library tab.

3.   Click Family History Library Catalog.

4.   Click Place Search.

5.   Type England or the name of a county, and click Search.

6.   Click the locality that you want.

7.   Scroll down the list of topics, and click Probate records.

8.   Click on an appropriate title.

Click View Film Notes to see the film numbers.

Post-1857 probate records are on microfilm. The library has microfilm copies of indexes from 1858 to 1955, wills from 1858 to 1925, and some administrations.

Many probate records from the counties of Devon, Somerset, and Cornwall were destroyed during World War II. For these counties, abstracts (1796–1812) or copies (1812–1850) of all wills on which an estate duty was paid are available at the Family History Library. These records may be found in the Place Search of the Family History Library Catalog under:

ENGLAND, [COUNTY] - PROBATE RECORDS

Estate Duty abstracts (1796–1852) and indexes (1796–1903) for the whole country are on microfilm. A typescript register of these film numbers, titled England and Wales Estate Duty Office: Death Duty Registers, is available only at the Family History Library in Salt Lake City. The film numbers may also be found in the Place search of the Family History Library Catalog under:

ENGLAND - PROBATE RECORDS

Records of the Court of Arches, the major appeals court, start in 1660. Many of this court’s records are available on microfiche and are indexed in The Index Library. (FHL book 942 B4b, v. 85.)

Records Not at the Family History Library
For some courts not all documents or time periods have been microfilmed. For a few courts, the library has no records at all. Sometimes a particular record was omitted from the filming. To obtain a copy of a record not at the library, contact the archive that holds the original records. For copies of wills after 1925 or administrations after 1857, write to:

York Probate Sub-Registry Castle Chambers Clifford Street York Y01 9RG England Email: [mailto:york.psr@hmcourts-service.gsi.gov.uk york.psr@hmcourts-service.gsi.gov.uk] Telephone: 01904 666777 Internet: http://www.lawontheweb.co.uk/basics/probateoffices.htm

When visiting England the office location is:

Probate Search Rooms First Avenue House 42–49 High Holborn London England Internet:http://yourarchives.nationalarchives.gov.uk/index.php?title=Research_Guide:_Probate_Records 

Difficulties in Locating a Pre-1858 Record
You may have difficulty locating a probate record for one of the following reasons:


 * In many courts there are separate indexes for administrations and wills. Search both indexes to find a possible probate record in that court.
 * When a higher church authority made an official visit, the lower court was "inhibited" (prevented from acting). This was called an "ecclesiastical visitation." Records of estates probated during an ecclesiastical visitation are often with the records of the higher court.
 * If the court presiding officer was not present, another court probated the will. For example, the Court of the Dean and Chapter usually acted when there was no bishop.

Other courts, such as the Court of Common Pleas or the county quarter sessions, may have probated or received a copy of the will.

Technically, church courts did not have jurisdiction over real property. Some wills and many disputes over real property were handled by the Chancery Court of England. Some of the wills in this and other national courts are listed in:

A List of Wills, Administrations, etc. in the Public Record Office, London, England: 12th–19th Century. Baltimore, Maryland, USA: Magna Carta Book Company, 1968. (FHL book 942 S2po.)

An entirely different court may have been used for the convenience of the executor.

To overcome these problems, search the records of all probate courts having jurisdiction over the areas where the individual had property. You may also need to extend your search several years after the individual’s death.