More about Probate Records - England and Wales

What are they?

The Statute of Wills of 1540 provided that a Will should deal with real estate, land and buildings and that a Testament should deal with movable personal property. As time went on these terms became interchangeable and the term Will is normally used today.

Wills could be made by anyone (other than lunatics, convicted traitors and felons) in possession of goods worth £5 or more (£10 in London), They could be made by boys from the age of 14 and girls from the age of 12, these ages applied until 1837 when they both had to be of full age. Until the Married Women's Property Act in 1882 wives were not able to make a will without the permission of their husband.

The Person making and leaving a will is known as the testator (testatrix if female), they would name executor/executrix to administer and distribute the estate after death. A will would normally be signed (or a mark made) by the testator and would be witnessed by two persons (who were not allowed to benefit from the will from 1752 onwards). After death the executor(s) had to apply to a court that would have to be satisfied that the will was valid, this process is known as proving a will. The court would then issue a document called a grant of probate.

Types of Record

  • Letters of Administration (Admon) - granted by court to next of kin when no will was made or could be found (died intestate).
  • Admon with Will Attached - this is usually found when either the executors have died or they have refused to execute the will.
  • Codicils - this is an additional document to extend or modify the terms of a will.
  • Nuncupative Will - spoken; a will declared orally before witnesses rather than written, usually in the case of sudden illness or imminent death (up to 1837).
  • Privileged Will - oral or informal will made by a soldier on active service, sailor or mariner at sea. (often known as battlefield wills).
  • Holographic Will - is one written, dated and signed in the testator's own handwriting.
  • Tuition or Curation bonds - when a testator had young children, he might nominate a person to ensure that the children were properly educated and set aside funds for the purpose.
  • Unofficious Will - is one in which the testator disregards his natural relatives and leaves his property to strangers or organizations.
  • Inventory - a list and valuation of all the deceased's movable goods. (mainly seventeenth and early eighteenth century).
  • Death Duty Registers - if a legacy or intestates' goods were over £20, increased to over £100 in 1853, legacy duty was payable to the Inland Revenue

Finding a Will before 1858

Up to and including 1857, wills were granted probate by ecclesiastical and lay courts. Ecclesiastical courts are related to church administration.

  • a Parish is the smallest unit, with a vicar or rector or curate
  • a Rural Deanery is an area consisting of a number of parishes (usually less then 12) headed by a rural dean.
  • an Archdeaconry consists of a number of rural deaneries in the charge of an archdeacon.
  • a Diocese consists of several archdeaconries with the authority of a bishop.
  • a Province is a large area of several dioceses with the authority given to an archbishop (until 1920 there were only two, Canterbury and York).
  • a Peculiar is an area that by ancient custom is exempt from the archdeacon's and bishop's authority. It can consist of one parish, several parishes either adjacent or widely apart, a manorial court, a university or college, certain cities and towns.

The value of the will and the location of the property bequeathed will normally determine which court would prove the will.

If the property was

  • all within one archdeaconry, the will would have been proved in an Archdeacon's court.
  • in more than one archdeaconry but within one diocese it would have been proved in a Bishop's diocesan court or Consistory court.
  • in more than one diocese it would have been proved by an Archbishop's prerogative court.
  • in both provinces or outside England then the Prerogative court of Canterbury claimed superior jurisdiction.
Executors could chose to use a higher court if they so wished; this was very common amongst those 'of perceived higher social standing' or who lived in London.

The records of the minor Probate Courts are normally deposited in their County Record Offices or other local archives. They would be held local to the court rather local to where the person died and may not be exactly where you would anticipate. Also there are over 300 of these courts, and the quality of indexes varies considerably. Unfortunately these indexes are not available in any one central repository. However those dated after 1796 may be subject to death duty or estate duty and if so there are indexes available. Indexes from 1796 to 1903 are available on microfilm at the FRC and the NA.

However, there were only two Archbishops' courts responsible for proving wills. The Prerogative Court of the Archbishop of Canterbury (PCC covering the South of England and Wales) and the Prerogative Court of the Archbishop of York (PCY covering the counties York, Durham, Northumberland, Westmoreland, Cumberland, Lancashire, Cheshire, Nottinghamshire and the Isle of Man). The records of the PCC are held at the National Archives and the records of the PCY are held at the Borthwick Institute, University of York. There are no published indexes to the PCY but the PCC has indexes available on microfiche available at the FRC and the NA, they are also available in many local record offices and libraries as well as online at www.documentsonline.nationalarchives.gov.uk

Finding a Will after 1858

The Probate Act of 1857, which came into effect on January 12 1858, abolished the Church Courts and made probate the responsibility of the Civil Authorities. All probate matters are now dealt with centrally at the Principal Probate Registry.

There are national indexes of Wills proved and Administrations granted, for the whole of England and Wales, for each year from 1858, known as the Index of Grants. They can be found in printed form (1858-2004) at First Avenue House London and on microfiche (1837-1968) at many Record Offices (Berkshire Record Office has indexes 1837-1943) and other local archives. Over the next eighteen months there are plans to also put them online at www.courtservice.gov.uk The indexes themselves provide a great deal of useful information such as names of testators in alphabetical order, dates of death, addresses, occupations, names of executors, etc.