Reference Centre, Genealogy 101

Probate Records

Canada and U.S.A.

Due to the British foundation of Canada and the United States the statutes governing the validity of Wills and rights of inheritance were initially adapted from existing British laws.   Over the ensuing years, however, those laws were amended, modified, and rescinded and new statutes written so that now each province and state bears its own unique requirements and restrictions - too many, in fact, to enumerate in an introductory text of this nature.   On the whole, Canadian and American Wills and estate files contain the average amount of family data one would normally expect to find in such files.   As with a search for Wills in foreign countries, we need to first understand the court system operative in Canada and the U.S.A. through which estate matters were administrated.   In both countries civil courts, commonly known as Surrogate Courts, bear the responsibilities that were, carried out by the ecclesiastical courts in Great Britain.   Each Surrogate Court holds jurisdiction for all persons residing within its specified civil boundaries.

English law was first introduced to Upper Canada in 1791 upon its separation from Quebec.   In 1792 the then existing Prerogative Court was abolished leaving the residents of the newly created province without a court that could administrate the affairs of a deceased, a situation that created many difficulties.   Pursuant to English law a Will had to be probated before any personal property of a deceased could devolve upon a beneficiary or be otherwise dispersed.   In 1793 two distinct courts were established namely, the Court of Probate and numerous district Surrogate Courts.   The Court of Probate held jurisdiction province-wide.   The Court of Probate also held precedence over the smaller district Surrogate Courts.   Therefore, the estate of any deceased could be probated either by the Court of Probate or by the district Surrogate Court of the district in which the deceased had resided.   The Court of Probate was also empowered with an exclusive jurisdiction which required that probates or administrations of estates be granted only by it if a deceased held property in two or more districts and which property was valued at five pounds or more.   Furthermore, the Court of Probate functioned as a court of appeal of orders and judgments handed down by any district Surrogate Court.

During 1827 the jurisdictions of both the Surrogate Courts and the Court of Probate were expanded to include governance over guardianship matters.   In 1850 with the breakup of provincial districts and the resultant formation of counties the jurisdictional boundaries of the Surrogate Courts were amended to coincide with the then newly created county boundaries.   Eventually, the function of the Court of Probate became superfluous and it was finally abolished during 1858.   The function of the county Surrogate Court remained relatively unchanged since that time up to the mid-1980s.

The Court of Probate files have been deposited at the Archives of Ontario.   An index to those files was published by the Ontario Genealogical Society during 1986 and can be found at many public libraries.   All Surrogate Court files to 1930 have also been deposited at the Archives of Ontario.   Blocks of files dating after 1930 are periodically transferred by the various Surrogate Court offices to the Archives for deposit.   Files of the more-recently administered estates remain in the possession of the court offices.   Surrogate Court offices do maintain a nominal index of all estates from 1900 to date.   Many of the early indices have been microfilmed for the period up to 1970 and can be accessed at the provincial archives.   Indices of estates administered after 1970 are open for public search at the individual court offices.   Additionally, indices to most of the County Surrogate Court files between 1858 and 1900 have been published in book form and are available at many public libraries.   All of the indices provide the name of the deceased and the court file number, which is essential before a file can be located either at the Archives, or retrieved from a court office.   More modern indices include the date of death and the date of the grant of probate or administration.

There are also two other resources which, when taken together, can function as a province-wide index to all Wills or Probate applications for the period 1793 to 1982.   The appropriate resource should be searched if the place of death of an ancestor is unknown.   The earliest resource is an index to all Surrogate Court Wills and provides the deceased's name, residence and year of probate.   Known as Appendix H in Record Group 22, this index covers the period 1793 to 1859 and can be found on Archives of Ontario microfilm MS 830, reel 1.   The second resource is known as the Application to Probate.   The index to the Applications to Probate cover the period 1859 to 1982 and list the names of the deceased alphabetically.   The Application Books record the location of the court that processed the estate.   Both the index and the Application Books are available on microfilm from the Archives of Ontario on MS 404 series.   There are 98 reels in this series so it will be necessary to check with the Archives for the specific reel number required for your search.   All of the indexes to estate files are now available for searching on the archives website at http://www.archives.gov.on.ca/english/index.html.

All estate files that have been deposited at the Archives are open for public search.   If an ancestor owned real property at the time of his or her death it was also necessary to deposit any grant of probate or administration with the appropriate Land Registry office.   These grants will be found indexed in the Deposit Register of the Land Registry Office.   If an ancestor's estate was not sufficiently large enough to warrant court administration and no dispute amongst beneficiaries was likely or claims to the estate by lenders expected, a Will could simply be lodged at the Land Registry office to effect transfer of the real property to the heir.   Wills thus lodged will be indexed in the General Register of the Land Registry Office.   Currently, any original documents that were lodged with or deposited at the Land Registry Office are also available for public access.

Although direct public access to recent estate files is not permitted, copies of Wills and other estate documents can be requisitioned from a Surrogate Court office.   Be prepared, however, to pay a search fee and photocopying charges.  

Wills and estate files relating to American ancestors were and still are maintained in a manner similar to that in Ontario.   Probate offices are generally located at or near the County Courthouse and hold jurisdiction for persons residing within that county.   Wills and estate files are maintained at the court office and are open to public search at the discretion of the Court Clerk.   Estate files are indexed alphabetically by surname and the index is available on-site at a court office.   Search fees and photocopying charges will be levied by the court even if a personal search is allowed.

England, Wales and Ireland

The Wills and estates of individuals in England, Ireland and Wales, prior to 1858, were exclusively the domain of ecclesiastical courts and consequently will be found at a regional Diocesan archive.

During 1858 responsibility for the administration of a deceased's affairs, whether that deceased was conformist or dissenter, was transferred to the central Probate Registries in London and Dublin.

To understand where one might locate a Will of any English or Welsh ancestor, again, it is necessary to first gain knowledge of the various ecclesiastical courts and, second, to understand how an ancestor's land holdings determined in which court that individual's Will was probated.   All of England and Wales is divided into two provinces, those of Canterbury and York.   Within each province are numerous diocese.   Within each diocese are several archdeaconries and within each archdeaconry can be dozens of parishes.   If an ancestor held property in one or more parishes that happened to lay within the boundaries of a single archdeaconry, the Will was proved and probate granted by the Archdeaconry Court of the prevailing diocese.   If an ancestor held property in two different archdeaconries but those archdeaconries were within one diocese, the probate was granted by the Bishop's Consistory Court for that diocese.   If a deceased owned property in two or more diocese but within the same province, the Prerogative Court, located in the principal seat of that province, held jurisdiction.   The Archbishop of Canterbury held precedence over the Archbishop of York and in cases of a deceased owning property in both provinces, the grant of probate fell under the jurisdiction of the former.   Additionally, if a deceased held property in England or Wales as well as in a foreign country, a grant of probate had to be obtained through the Archbishop of Canterbury's court at London - the Prerogative Court - for the disposition of that property.

Most of us do not know at the beginning of our search whether an ancestor held any property and certainly do not have any knowledge of the geographic locales of multiple holdings.   For that reason, it is imperative that a genealogist search the indices of each ecclesiastical court to fully determine the existence of any Wills.   First, however, it is imperative that the genealogist learn of the various ecclesiastical jurisdictions i.e. archdeaconry, diocese and province, operative for the parish of the ancestor's residence.   It is also necessary to learn the location of each court's archives before any search can begin.   Thankfully, there are two sources one can consult to obtain most of the needed information.   The maps contained in W.P.W. Phillimore's Atlas and Index of Parish Registers mark the boundaries of all parishes in England, Wales, and Scotland.   The boundaries of all archdeaconries within England and Wales are also delineated.   A number of gazetteers were published during the nineteenth century, which can also provide the names of each ecclesiastical authority of each parish.   Gazetteers can also assist in determining the location of diocesan offices.

The Wills of ancestors who resided or held real property within a Peculiar jurisdiction were under the authority of a number of different courts, including those of the Crown.   Consequently, a search for a Will of an ancestor residing within a Peculiar jurisdiction can be even more complex and time-consuming.

Non-conformist ancestors were required to have their Wills proved by the Prerogative Courts of either Canterbury or York.   Furthermore, during the Civil War (1642-1653) the estate matters of all subjects were to be proved only in the Prerogative Court of Canterbury at London.   During the period of the Interregnum (1653-1660) all ecclesiastical courts in England and Wales were closed.   The granting of probate became a matter for the civil courts.   It should be noted that this provision did not apply to the ecclesiastical courts of Scotland and those continued to function uninterrupted.

Prior to 1858 there existed, in Ireland, only two courts in which a Will could be proved and probate or administration granted - the Diocesan courts of the Bishops and the Prerogative courts of the Archbishops.   The Archbishop of Armagh held jurisdiction over the 28 diocesan courts.   As all records were required to be deposited at Dublin sadly they were destroyed during June of 1922.   However, indices to most of the Wills were prepared at the time of deposit and did survive.   Although an index is not a substitute for the document at least an index can confirm the existence of an ancestor and his or her place of residence.

Scotland

In Scotland, as the disposition of land was closely regulated, only those with moveable property such as livestock, monetary assets, jewellry or furnishings would find it necessary to make a Will.   Those who were property rich but had few moveable assets would not have felt much compulsion to draw a Will.

Wills in Scotland are referred to as Testaments - a Testament being the distribution of moveable assets while a Will technically refers to a grant of real property.   The administration of Testaments was originally the responsibility of the ecclesiastical courts.   Those courts however were abolished following the Reformation (1560) and governance of estates devolved upon newly appointed district Commissary Courts.   The jurisdiction of each Commissariat covered many parishes and in some cases parishes lying in two different counties.   At that time the commissariat of Edinburgh was created with special local jurisdiction in the Lothians, Peebles, and part of Stirling.   From 1566 to 1609 commissaries were appointed by the Crown.   After the Established Church switched to Episcopalianism the authority to appoint commissaries devolved upon the bishops.   In 1689 the authority for such appointments again passed back to the Crown.   Also during 1609, appeal procedures were instituted permitting appeal from all other Commissariat courts to the court of Edinburgh.   The final step in the appeal procedure was an appeal to the Court of Session.   During 1823 and 1830 laws were passed requiring all commissary courts to deposit their records at Register House in Edinburgh.   Ultimately, during 1876 those Commissariats too were abolished.   At that time the responsibilities were transferred to local Sheriff's courts.   Consequently, all Testaments, except for those administered by the commissary of Edinburgh, are now to be found in the various county Sheriff's offices.   This is an oversimplification of the testate governance in Scotland, but is sufficient to guide the family historian to the appropriate court archive in the search for Scottish Testaments.

Scotland not only follows an unusual course in the administration of estates but also has developed terminology to define each record and step in the process.   Estates that are administered pursuant to a Will are known as Testaments Testamentary.   A deceased who died intestate (without a Will) but who had moveable possessions, which had to be disposed of, had his or her affairs directed by a Testament Dative.   Both types of administration required the making of Inventories of the deceased's moveable possessions.

Shortly after the deceased's death the executors of an estate were required to appear before the commissariat to be confirmed.   Records of Confirmations record the names of those executors.   Before an estate could be wound up at least two other processes had to be completed.   The heirs of a deceased were also required to appear before the court to take possession of their bequests.   Records of notices to heirs and receipt of goods by the heirs are known as Services of Heirs.   Edicts were also published to provide anyone who may have had a claim against the moveable estate of the deceased to make their claim known.   Edicts were also often times read out after Sunday church services and tacked to the front door of the parish church thereafter.   After the various processes were completed the Testament was then able to be registered formally in the records of the commissariat court.   The Register of Testaments is an abstract ledger of all probated records, which is arranged alphabetically by the surname of the deceased.   Not all Registers of Testaments includes Testaments Dative.   Consequently, the family history researcher would be well advised to examine any edicts that were issued by the commissariat court during the period surrounding the deceased's time of death.

In addition to the above documents, Testaments and references to Testaments Dative can be found among the papers of the Register of Deeds.   One should not overlook the general court records of the Commissariat Court and the Court of Session as all cases of disputed inheritances were heard and settled by both of these courts.   Lastly, some records of seventeenth century hornings do survive.   Hornings were a process by which heirs were publicly proclaimed to the local residents and draw their unusual term from the act of blowing a horn a specified number of times.

Scottish estate records are not an easy resource to search.   Although these records are easy enough to access, as they are deposited either with the Scottish Record office or a local commissariat court, the arrangement of the records can be quite confounding to the neophyte.   As with all other classes of records not all of the estate records described here have survived for every commissariat district.   The most notable loss were the ancient records of the Aberdeen Commissariat, which were lost to fire during the 1720s.

Thankfully, an array of indices have been published for some record groups for some periods of time.   The Scottish Record Society under the title of "Commissariat Records" published confirmations, which were issued prior to 1800.   Those index series can be found in most major British libraries and at the Scottish Record office.   Testaments registered during the period 1801 to 1823 have also been indexed but in two series.   One series indexes Testaments separately for the Commissariats of Edinburgh, Glasgow, Peebles, Orkney and St. Andrews.   The second series is a combined general index to the Testaments that were registered in the remaining Commissariat Courts.

Calendars of Confirmations and Inventories for the period 1876 to 1959 have also been printed and are available at the Scottish Record office.   These are annual indexes of Scottish confirmations and inventories, which are arranged alphabetically by the surname of the deceased.   In these calendars married women are listed by their husband's surname.   Details from these calendars will enable a researcher to locate the Testament and Inventory of the deceased in either the Scottish Record Office or the appropriate Sheriff's Court.

Lastly, an "Index to Personal Estates of Defuncts" indexes the inventories that were filed in the various Sheriff's Courts during the period 1846 to 1867.   Separate indices also exist for the period 1827 to 1865 pertaining to the inventories that are filed with the Sheriff's Courts of Edinburgh, Haddington, and Linlithgow.   Again, information from these indices will lead the researcher to the Confirmation, which, in turn, will lead to the Testament.   Also recorded are the date of death, whether the deceased died testate or intestate, the name of the Sheriff's Court where the estate was processed and the year that the inventory was recorded.



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