Scotland Probate Records
Scotland has no "Probate" records - the term is Confirmation. Testaments are court records dealing with the distribution of a person’s estate after death, but up until the mid-19th Century, they could only deal with "moveable" estate (i.e., not land, buildings, titles or other "heritables" or "immoveables". 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. On the other hand, as there were very strict rules about the distribution of moveable property, there was no need to name a widow/widower or children, and often they are not named at all.
Essentially, a surviving spouse had to inherit a third, children a thoird and the deceased could dispose of a further third (the "deid's part") by a Latterwill or Legacie. There were further rules to complicate matters, but that's the essentials of it.
These records are very helpful because they were recorded long before statutory birth, marriage, and death registration.
Testaments were made primarily by the middle and upper classes, most of whom were nobility, gentry, merchants, or tradesmen. However, they 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. This will include a Latterwill or Legacie exprssing the deceased's wishes.
- 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.
- Both of these will also contain an Inventar (inventory of moveable property)
To inherit immovable property such as land, heirs had to prove to an Inquisition (essentially a jury of local people) their right to inherit. The records granting these rights are called Retours of 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 (eventually 22) 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. (Family Hitory Library 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. (Family History Library book 941 D27s).
But bear in mind there was no compulsion to have a testament confirmed in any particular commissariat, and many chose to use the Edinburgh court (as the premier one). So it may be necessary to search them all.
After about 1823 (the system took a few years to fully evolve), testaments were confirmed by commissariat departments within the sheriff courts. The boundaries of these courts’ jurisdictions are 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.
In 1876 the commissariats were absorbed by the sheriff courts, which now handle executory matters.
Finding Testamentary Records
The original records of the commissariat and sheriff courts are housed at the National Archives of Scotland 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 (although Scotland has no legal concept of "probate", which means "proving" - in Scotland, it's Confirmation)
Scotland, [County] -- Probate records
You may also access testamentary records online through the ScotlandsPeople web site (see Indexes below). You must register to use the website. Once you have found a probate of interest in the index, you may pay to view a copy of the records if you wish, then you can print and/or save it to your computer.
Indexes to Testamentary Records
To find a record of interest, you should first search an index. Scottish testamentary records, for 1513-1901, are indexed online on the ScotlandsPeople website. It is free to search the index.
Other printed and microfilmed indexes are available at the Family History Library. To find them listed in the library's catalog, do a Place search for:
Scotland -- Probate records--Indexes
Scotland, [County] -- Probate records--Indexes
From 1876-1936, these books can be located through the Family History Library catalog 
Difficulties in Finding a Testament
If you have difficulty locating a testament, 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, or any other commissariat, 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 and sometimes also in an English court, such as the Prerogative Court of Canterbury (available as "PCC Wills" at The National Archives, Kew, and on their website).
- Testaments for women may be under their maiden name..
Learn More About Testamentary Records
To read more about Scottish testaments, go to the appropriate pages on these websites:
Return to the Scotland Portal page.