Did you know that Scotland does not have any probate records they have Wills and Testaments.
The Images of these documents from 1513 to 1901 can be purchased online from www.Scotlandspeople.gov.uk. The originals of these documents are held at the National Archives of Scotland, in Edinburgh but are no longer available to the public.
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."
"Testaments are court records dealing with the distribution of a person’s estate after death. These records can be very helpful because they were recorded long before statutory birth, marriage, and death registration began in 1855. 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 regardless of the social standing of your ancestors.
Information recorded in testaments 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, the children one third and the deceased could dispose of the last third (the deid's part) by a latterwill or legacie. There were further rules to complicate matters, but that's the essentials of it.
Movable Property Only
In Scotland before 1868, it was not possible to leave immoveable property (land, buildings, titles or other heritables) to a person by means of a will. It was only possible to give personal 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 expressing 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 or 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 the Wiki.
Determining Court Jurisdictions
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. This system stayed in force until the end of 1823.
To help you determine which commissariat court had jurisdiction over which parishes and counties, go to the ScotlandsPeople website and its 'Courts Map' page, which identifies which courts operate in a given county by clicking on the appropriate county; or see the following guides:
- Testaments and Commissariat Records of Scotland. Salt Lake City, Utah: Genealogical Society of Utah, 1972. (Family History 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). Identifies court(s) by county along with ending dates for Commissariot and beginning dates for Sheriffs Court, which often overlap.
- Kathleen Cory. Tracing Your Scottish Ancestors, Third Edition. Baltimore, MD: Genealogical Publishing Company, 2004. Appendix III provides a table listing all parishes, among other things identifying Commissariot(s) which included that parish, and date of first testament or inventory for the parish.
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 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 on the website and in the guides mentioned above. This list comes from ScotlandsPeople.
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.
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
You may also access testamentary records online through the ScotlandsPeople web site (see Indexes below).
Online indexes to Testamentary Records
Indexes are being compiled for these wonderful records:
www.Scotlandspeople.gov.uk 1513-1901 The wills & testaments index contains over 611,000 index entries to Scottish wills and testaments dating from 1513 to 1901"