Reference Centre, Dictionnaires

Dictionary of legal terms found in Probate and Estate Records

Act Books

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A book in which a Court's orders were recorded. In this instance, the Act Books of the Archdeaconry, Consistory or Prerogative courts recorded the fact of a grant of probate or administration or the final disposition in regard to a disputed estate or other appeal made to it. The entry in the Act Book also records to whom the grant was made, the name of the deceased and possibly the last parish of residence and the occupation of the deceased, the date of the grant and any bond amount that the Court required be filed. In areas where neither the original nor registered copy Wills have survived, the Act Books can at least provide some rudimentary information concerning an ancestor if he or she had made a Will. Prior to 1733 most entries in the Act Books were written in Latin.

Administration

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A Court ordered grant given to someone to administer the goods, chattels and effects of a deceased who did not leave a Will and/or Testament.

Administration with Will Annexed

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A Court ordered grant given to someone, who is not a named executor or executirx in the Will and/or Testament of a deceased. In this instance, the administrator or administratrix must abide by the last wishes of the deceased as set out in his Will. The Will of the deceased is attached to and forms part of the grant of the Administration, hence the name Administration with Will Annexed.

Administrator or Administratrix

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Male or female who receives a grant of Administration as described in the above two entries.

Assigns

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A person, persons or entity to whom another individual has or may legally transfer, or hand over, the right, title and/or interest that the individual or entity has or may become entitled to in any real or personal property.

Beneficiary

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Any person who is named to receive money or property pursuant to a Will or Testament.

Bequest

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Money, property, real or personal, given to a named person by the Will and/or Testament of another individual.

Chattels

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Any article of moveable or immoveable property, except real estate, held in freehold, e.g. furniture, animals, fruit trees, crops, carriages, china, linen, et cetera.

Codicil

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An additional written provision made to change, alter, amend or add to a provision in an existing Will or other Codicil. The Codicil is physically attached to the existing Will. A Will can have more than one Codicil and the Codicil can be made for any purpose, e.g. nominating new or different executors, rescinding a bequest, making a new bequest, altering the division of property, et cetera.

Confirmations

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A Scottish Court document that confirms the appointment of an Executor.

Curation Bond or Curator

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A Curator is a person who is appointed by Will or by a Court as the guardian of an orphaned minor child - boys aged 14 to 21 years and girls aged 12 to 21 years. A monetary payment was required to be paid into Court by the Curator to assure his/her proper performance of his/her duties. The payment was made by way of bond and was referred to as a Curation Bond. See also 'Tuition Bond and Tutor', below.

Devise

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The giving or leaving of property, usually land and buildings, by a Will to a named beneficiary.

Devisee

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The person named in a Will who will receive property, usually land and buildings.

Executor or Executrix

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Male or female who is named in a Will or Testament as being charged with the responsibility of carrying out the last wishes of the deceased. The Executor and Executrix have to be ratified or approved by the Court before they are able to act in that capacity and may, depending upon the estimated value of the estate, have to post a monetary performance bond.

Guardian

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A person or persons who are charged with the care, upbringing and maintenance of a minor child of any age. The guardian is also responsible for administering all of the affairs of the child under his or her care.

Gavelkind

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An unusual form of land inheritance found in Kent, Wales and certain areas of London, whereby real property is divided equally among all living sons. Gavelkind inheritance could be circumvented by the provisions of a Will calling for a different division of the deceased's property among his or her heirs.

Heir

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A person who succeeds or is entitled to succeed to the property of a deceased person as well as to the benefits, rights, and obligations attached to that property.

Hereditaments

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Every kind of property that can be inherited including property which a person had by inheritance from his or her ancestors and property which a person obtained by purchase. Corporeal or tangible hereditaments referred to land, houses and anything that had a physical presence. Incorporeal hereditaments referred to property that had no physical presence, such as rents or profits issuing from a piece of land, investments or trusts. Hereditaments also included reversions, remainders and other executory interests in land as well as benefits attached to land, such as advowsons, tithes, easements, services, annuities, offices, dignities, franchises, et cetera.

Holographic Will

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A Will written, dated and signed entirely in the handwriting of a Testator or Testatrix, usually not witnessed and usually written at a time when death was believed to be imminent. In order for the Court to approve and ratify an holographic Will a declaration or Affidavit of one or more independant persons, who were familiar with the handwriting of the deceased, was required to be given to the Court prior to the granting of probate.

Hornings

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Hornings were a process by which heirs in Scotland were publicly proclaimed to the local residents and draw their unusual term from the act of blowing a horn a specified number of times.

Intestate

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To die without having made a Will or Testament.

Inventory

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A detailed listing with an estimated value for each item of the real and personal property of a deceased.

Mark

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In terms of English money, a mark was 2/3 of an English pound or worth approximately 13 shillings and 4 pennies.

Legacy

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Money or other property that has been handed down from an ancestor or predecessor, by Will.

Legatee

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A person to whom a legacy is left.

Moveable Property

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Any item of personal property that can be moved from place to place.

Per capita

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Capita, a Latin term, is the plural of Caput, meaning the head. The term, per capita, or 'by the head', is usually only used upon the division of an estate into equal shares. In this instance each living member of the family would receive an equal portion of the estate regardless of the degree of the kinship to the deceased. In other words, the share of a cousin would be equal to the share of a brother of the deceased. Bequests tend to take the form of '...to my children and all of their issue in equal shares per capita...'. This then signfies that each child, grandchild and grandchild of the deceased who is living at the time of the deceased's death will share equally in the estate.

Per stirpes

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Stirpes, a Latin term, the plural of Stirps, meaning stock or family and therefor, the person or persons from whom a family is descended. This term is used upon the division of an estate of a deceased equally to one particular degree of kin. For example, a deceased may divide a portion of his estate equally among all of his grandchildren. However, if one of those grandchildren dies before the deceased, the children of the deceased grandchild would have to share the one portion that their parent otherwise would have received, equally amongst themselves.

Personal Property

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All property belonging to an individual that an be moved from place to place - jewellry, linen, clothing, stocks, bonds, animals, et cetera.

Primogeniture

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The right of the eldest child in a family, usually the eldest son, to inherit the estate or office of his father.

Probate

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To prove by legal process that Will is genuine. The grant of probate is given to the person named in the Will as the Executor or Executrix. If the Executor or Executrix is unable or unwilling to carry out his or her duties then another individual must be appointed by the Court and a grant of Administration with Will Annexed given in the place of a grant of Probate.

Real property

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Land and any other thing permanently attached to it such as houses, outbuildings, barns, and trees.

Release

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A legal document signed by a beneficiary after the receipt of his or her share in an estate. The Release frees the Executor and the estate from any further claim by the beneficiary against either of them.

Shilling

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A British unit of money equal to 12 pennies.

Succession Duty

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A statutory tax levied on all of the property of a deceased and payable under certain circumstances prior to the distribution of an estate.

Successors

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A person who follows another in office, position or ownership of property.

Tenements

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Any building which can be lived in, such as a house, or which can be the subject of a tenancy agreement , such as a barn or other outbuilding - a shop, forge, et cetera, as well as the incorporeal hereditaments such as the rents, profits, uses and/or dignities attached to and coming as part of the tenement. Personal incorporeal hereditaments granted to a person, such as an annuity based on the profits of a piece of real property, is not a tenement.

Testament

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The Testament is that portion of a Last Will and Testament that by the written instructions of a Testator disposes of his personal property after his death. See also 'Will'.

Testamentary Expenses

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The costs of obtaining a grant of probate or administration, all incident costs associated with administering the estate of a deceased such as payment to the valuator for his services in valuing the goods of the deceased, any bank transfer fees or penalties due on the calling in or converting of the deceased's investments for the purposes of the distribution of those estate assets amongst the beneficiaries, as well as the amount of any death duties. Testamentary expenses would also include the payment that was due to the Executor or Administrator for his or her services in carrying out the administration of the estate.

Testaments Dative

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This is the legal process by which the estate of a person who had moveable property but who had died intestate in Scotland was administered.

Testaments Testamentary

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The administration of an estate in Scotland pursuant to a Will.

Testate

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To die having made a Will and/or Testament.

Testator or Testatrix

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Male or female person, respectively, who makes a Will and/or Testament.

Tuition Bond or Tutor

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Tutors were guardians of minor children - boys below the age of 14 and girls below the age of 12. A monetary payment was required to be paid into Court by the Tutor to assure his/her proper performance of his/her duties. The payment was made by way of bond and was referred to as a Tuition Bond. See also 'Curation Bond and Curator', above.

Ultimogeniture

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The right by which the youngest child in a family, usually the youngest son, inherits or succeeds to the estate or office of his father.

Valuation

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The act of estimating or determining the value of the goods of a deceased and generally involving the taking and recording of an inventory of the goods, both real and personal, of the deceased.

Will

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The Will is that portion of a Last Will and Testament that sets out a Testator's personal wishes for the disposal of his real property after his death. See also 'Testament'.