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ENGLISH & WELSH ROOTS - Wills and Probate Records After 1858
Article posted: July 07, 2000
By: Fawne Stratford-Devai Biography & Archived Articles
Probate records are court records dealing with the distribution of a person's estate after they die. Probate is simply a term that refers to the process and records associated with settling an estate. Often we simply go in search of a will without awareness of other associated documents. Wills and associated probate records are part of the basic building blocks of English and Welsh research.
A will is a legal document that gives voice to a person's final instructions and wishes. For those of us left to carry on after the death of a loved one, a will is a very personal and poignant thing. It expresses with legal finality those family and friends whose value or standing allows them to benefit from the diseased estate and may even specify those individuals who are not to benefit. For those of us in search of long forgotten wills, the challenge is not only in finding a will but interpreting the names and relationships in light of other evidence we have gathered.
Many researchers in the beginning stages of their family history quest do not believe their ancestor could have left a will. Let's face it, only about 10% of the population left wills before the 1900s. Currently, only 35% of the population are expected to leave a will. However, when you add up all the names mentioned in those 35%, upwards of 50% of the population are covered.
The question of who exactly left a will is not easily quantifiable. As a result of the great economic changes of the last two hundred years, the social mobility of large numbers of the population also changed. This social mobility could have been for the better, with poorer classes moving to the middle classes and above. At the same time, land-owning, self sufficient families may have later generations that ended up on the streets of large urban areas or on a boat to the new world with little more than the clothes on their back.
My own mother did not own any land or substantial possessions when she died in 1993. However, her will was a tool by which she could communicate to, and express her gratitude for those family and friends who played a significant role in her life and throughout her final and fatal struggle with brain cancer. Please do not assume your family member did not leave a will. A researcher's greatest resource is the patience and the tenacity that comes with the commitment to "leave no stone unturned".
THE VALUE OF WILLS
The creation & structure of a will:
2. A man (testator) or woman (testatrix) wrote out a will (known as a holographic will) or, as was often the case, had a will drawn up by a solicitor. The will usually includes the persons full name and place of residence at the time of writing. It is important to remember that a will is a reflection of the circumstances at the time it is created. A will could have been created just prior to a person's death or years before. Depending on the situation, person's mentioned in the will could have died. As a result, it may have been necessary to amend a will (ammendment=codicil) in order to reflect the changes that occurred over time. Note: Married women rarely left wills before 1883 without their husband's consent, but widows and spinsters may have done. Married Women's Property Act 1882 allowed wills to be made by women marrying after 1 Jan 1883.
3. The will next sets out the various bequests (or legacies) to specific people and must also include clear instructions about what is to be done with all residual legacies that are not specified.
4. The person includes the name(s) of the executor(s) who are responsible for carrying out the instructions and wishes stated in the will. Executor(s) were often relatives but could also have been a close friend. Over time, the solicitors increasingly carried out the wishes and instructions of the will on behalf of the executor(s) since executor(s) were frequently also the main beneficiaries of a will.
5. The person then signed the will or made their mark in the presence of two or more witnesses. A beneficiary could NOT witness a will, so witnesses were often neighbours or friends or a solicitor and their clerk or secretary.
The executor(s) then used yet another copy of the will to get on with the business of settling the estate and executing the various instructions contained in the will.
Once a year since 1858, the Principal Probate Registry created an index to all wills and administrations. The index is alphabetical by surname and within surname by christian name. The index provides the deceased's full name and last address, death date, probate type and date, and estate value. Since 1973 the index has been produced on microfiche. Consequently it is relatively easy to find a post-1858 will if the year of a person's death is known. Note: from 1858-1870, Admons were indexed in separate registers (volumes). Since 1870, wills and Administrations are listed together. Now that we have a better understanding of how a will is created and probated, it is important to understand the terminology used in these important documents.
TERMINOLOGY & TYPES OF PROBATE RECORDS
Administration, Letters of Administration, or Admon refers to a document which appoints and individual to supervise the estate's distribution if the person died intestate (without a will). This document does not usually contain much information but could offer researchers useful clues. The administrator (male) or adminstratrix (female) is usually a relative of the deceased but could be an individual appointed simply to oversee the disbursement of the estate. Admons offer very basic family history information - such as: the full name of the diseased; their final or most common address; the date and place of death; occupation (or marital status for women); the full name, occupation and address of the administrator and their relationship to the diseased; the estimated overall value of the estate and; the estimated value of the estate after the death duty was paid.
Act Book contains day-by-day accounts of court actions, usually giving brief details of the probate matters dealt with. In the absence of indexes, these Books help locate desired documents.
Bond is a written guarantee that a person will faithfully perform the tasks assigned to him by a probate court. The executors posted Testamentary Bonds, the administrator posted Administration Bonds, and the guardian of a minor child posted a Bond of Tuition or Curation.
Codicil is a signed, witnessed addition or amendment to a Will.
Curation Guardianship over minors - under 21 but over 14 (boys) or 12 (girls). Typically abbreviated as Curon. See also Tuition.
Demise. To convey by will or lease an estate either 'in Fee' i.e. hereditarily, or for a term
Deponent. One who makes a statement on oath (verbal or written) in connection with a legal case. Various wills.
Devise. To leave, by will, land as distinct from personal property. See 'Bequeath' which is used to refer to the personal property of the diseased.
Executor / Executrix (often abbreviated to Exor): A person appointed by the testator to carry out the provisions of a will. Male = Executor, female =Executrix.
Grant Approval of the submission of the executor or administrator, denoting probate or letters of administration.
Guardianship See Curation and Tuition.
Heir Originally the person(s) (typically the eldest son) legally entitled to inherit the real property of the deceased. Other next of kin could only inherit personal property.
Hereditament. Property which may be inherited.
Intestate When a person dies without leaving a will, his estate is referred to as "intestate." The property of an intestate estate goes to surviving relatives according to formulas set by the law. When someone dies intestate, or for some reason a named executor or executrix cannot serve, a personal representative called an "administrator" (male) or "adminstratrix," (female) will be appointed to represent the estate.
Inventory lists belongings of the diseased and their values, including such items as household goods, tools, and personal items. Occupations are often mentioned.
Nuncupative will A will made orally, normally by a person on their deathbed. The will was created by writing down what is said and is then sworn to by witnesses - the will is NOT signed by the deceased.
Primogeniture The practice of conferring land on the eldest son in order to keep the estate intact.
Probate From the Latin probare (to approve or prove). An official act of a court declaring the will to be legally binding and grants the named executor(s) the right to carry out the terms of the will.
Probate Act The act of recording the probate by entering it (transcribing it) into the Act Book.
Proved A will has been proved when probate has been granted.
Registers and Registered Wills Transcriptions of wills into large registers and recorded at the time of probate. Most often it is the registers that a researcher will encounter. Although occassionally only the original will survives or only the registered copies survive.
Renunciation When an executor declines to apply for probate.
Testament conveys personal (moveable) property to heirs. As time passed, the separate references to wills and testaments were merged into one document known as the last will and testament.
Testate When a person dies and leaves a will. Whether the estate is testate or intestate (without a will), the process of distributing a deceased person's estate creates "probate records."
Tuition Guardianship over minors - under 15 (boys) or 13 (girls). Typically abbreviated as Tuon. See also Curation.
Will conveys real (immovable) property (land and buildings) to heirs after an individual's death. A registered Will is an official copy made by a court clerk. As time passed, the separate references to wills and testaments were merged into one document known as the last will and testament.
WOMEN & WILLS
Until the enactment of the Married Women's Property Acts married women during their marriage (coverture) had no legal testamentary rights at all in relation to real estate. Any personal property of a woman which she had before the marriage, or acquired after the marriage, became her husband's absolutely, and as such, he had the right to leave it by will. Only with her husband's permission could a wife make a will leaving personal property - even if it had been hers before her marriage. A husband's consent only applied to a particular will and had to be strictly proved. His consent could be revoked even after her death. The only exception to this was her right to make a will leaving her 'paraphernalia' - clothing and personal ornaments. Even then, a woman's personal paraphernalia could be used to pay her husband's debts: the only exception was necessary apparel.
Beginning on January 12, 1858, wills in England and Wales were proved (officially registered after death) at the Principal Probate Registry (formerly at Somerset House), or in a District Probate Registry. If a will was proved in the London area it was deposited with the Principal Probate Registry.
Indexes and copies of all wills proved in England and Wales since 1858 can be found in the Principal Probate Registry of the Family Division (PRFD) in London. Until May of 1998, the Principal Probate Registry was located at Somerset House. In June of 1998 the Principal Registry moved to First Avenue House.
FIRST AVENUE HOUSE
The central repository for post-1858 wills and administrations since June of 1998 is:
Principal Registry of the Family Division
First Avenue House
42-49 High Holborn
London WC1V 6NP
Open Monday to Friday, 10:00am to 4:30pm
(currently without a web site)
ORDERING BY MAIL
If you are unable to visit First Avenue House you can order copies of wills and administrations by post. If you do not know the date of the grant of probate or administration, you should quote the full name of the deceased, their last known address and the date of death. A fee of £5 is payable which includes a search of the indexes for a period of up to four years. An additional fee of £3 is charged for each four year period searched thereafter.
Cheques or postal orders should be made payable to 'H.M.Paymaster General' and requests addressed to:
York Probate Sub-Registry
York YO1 7EA.
Researchers should allow at least 4 weeks or more for a reply.
The annual indexes to wills and administrations created by the Principal Probate Registry is formerly known as the Calendar of the Grants of Probate and Letters of Administration made in the Probate Registries of the High Court of Justice. The index includes only England and Wales.
The indexes can be viewed at no cost if you visit First Avenue House in person. Duplicate sets of the indexes are also held by the District Probate Registries. However, as these offices are modern working services responsible for all modern records, it is not always possible to view the records in each District Probate Office. Fortunately, many index volumes more than 50 years old have been deposited with local County Record Offices. For details about each county situation, see the Gibson Guide to Probate Jurisdictions mentioned under published resources.
Surprisingly, the indexes can offer researchers information not found in the actual will or administration. For example, the address of executor(s) which were required to be recorded before 1892; the occupation (required until 1967) and the value of the estate may appear in the index but not in the actual will.
The National Index to Grants of Probate are now available on microfilm through the LDS. An example of entries contained in the LDS Family History Library Catalog for the indexes and other probate resources are listed below:
Using the LDS Family History Library Catalog, search under the subject heading: England - Probate records - Indexes. The LDS currently list more than 542 reels of microfilm covering the indexes.
ACCESSING THE ACTUAL WILL OR ADMINISTRATION
Once you have located an entry in the National Index, there are basically 4 ways in which you can order or get a copy of the actual record(s):
1. Visit the Principal Registry of the Family Division, Probate Department in person at First Avenue House in London during the hours of 10:00am - 4:30pm.
2. Order copies of wills and administrations by mail. If you do not know the date of the grant of probate or administration, you should quote the full name of the deceased, their last known address and the date of death. A fee of £5 is payable which includes a search of the indexes for a period of up to four years. An additional fee of £3 is charged for each four year period searched thereafter. Cheques or postal orders should be made payable to 'H.M.Paymaster General' and requests addressed to: York Probate Sub-Registry, Duncombe Place, York YO1 7EA. Please remember to allow at least 4 weeks or more for a reply.
3. Copies of wills and administrations proved in the last 50 years can be view found in the District Probate Registry where the original grant of administration was made. Please make sure you telephone before travelling to a District Registry to ensure you are able to access the records. These are modern government offices responsible, usually under-staffed and responsible for many modern, demanding services. Also remember that many District Registries have deposited original records more than 50 years old with local County Record Offices or similar archival repositories.
4. The Church of Jesus Christ of Latter Day Saints (LDS) has been actively microfilming all probate grants from 1858 to 1925. Because the filming was completed in two phases and covered both the copies in District Registries and the Principal probate registries (1858-1899 and 1900-1925), the entries are listed separately in the Family History Library Catalog. Microfilm can be borrowed from the main library in Salt Lake City to a local LDS Family History Centre. An example of the entries in the Internet based Catalog are listed below.
In addition, the LDS have now microfilmed wills and administrations from 1900-1925 and these are also listed in the online Family History Library Catalog A sample of such entries follow:
There is also microfilm listed under a separate entry to cover the entire period of 1858-1925. The explanation of the organization of the records is clearly stated in the Family History Library Catalog:
The LDS Family History Library Catalog can be viewed online at: http://www.familysearch.org/Search/searchcatalog.asp
WHY CAN'T I FIND A RECORD? There are a number of reasons why you may not be able to locate a will in your research.
While probate records are one of the most accurate sources of genealogical evidence, even they must be used and interpreted with caution. For example, the records may:
As noted earlier, Death Duty or Legacy Duty and similar terms associated with taxes on estates have become known as Death Duty. For example, a Legacy Duty (tax) introduced in 1796 was payable on the legacy and residues of personal estates worth more than £20. After 1815, this tax was extended to include monetary legacies. In 1853 a Succession Duty came into effect which taxed inherited property valued at more than £100. By 1894, these two taxes were replaced by a single Estate Duty tax. The important news for family historians is simply that when money was involved (taxes), records were generated. The registers in which the duties were recorded were "active" for upwards of 50 years which meant that information and notes were added to entries regarding the death or departure and general location of beneficiaries. These additional notes can be quite illuminating. In addition, the registers provide the name(s) of beneficiaries and their relationship to the deceased (their consanguinity or blood relationship). It is important to remember that not all wills and administrations were subject to taxes and therefore are not included in the Death duty registers.
Death Duty records exist for the period 1796 to 1903 (there are no records after 1903 because the Inland Revenue office began keeping individual files instead of registers and the files were destroyed after 30 years). Death Duty records are held by the Public Record Office (PRO) in London. The registers are found in IR26 and the indexes in IR27. The indexes document where a probate was proved.
All the indexes in record class IR 27 have been microfilmed and can be viewed at both the PRO and the Family Records Centre (FRC). They are also available through the local Family History Centers of the Church of Jesus Christ of Latter Day Saints. Death Duty registers in IR 26 for the period to 1858 are also available on microfilm as noted above. However, the Registers for 1858-1903 have not been microfilmed and are therefore only available by viewing in person at the PRO. In addition the original registers for 1858-1903 are stored off-site from the main PRO building and require at least 3 working days to arrive at the PRO.
More detailed information about Death Duty records is available online through the PRO and Family Records Centre websites in the form of their very helpful information leaflets:
======= from record no. 100 onwards ======
As this issue of English and Welsh Roots has shown, the state has been responsible for the proving of wills since 1858. However, the probate story does not begin in 1858. Prior to January 12th, 1858 probate functions were exercised by church courts. The resources and records associated with pre-1858 probate records will be covered in future issues of English and Welsh Roots. Until then, consider searching probate and death duty records the next time you are looking for family history information after 1858.
Please remember, your research is the legacy you leave to others - verify all information you find!
Association of Genealogists and Record Agents If you are in need of a professional researcher in the United Kingdom - start here. Membership of AGRA is limited to those who have demonstrated a high level of competence and expertise. A Code of Practice and a Complaints Procedure are in place. http://www.agra.org.uk/
The Susser Archive This little known link takes you to the documents and papers of the late Rabbi Dr Bernard Susser, historian of the Jews of South West England. The archives of Rabbi Susser, together with his computer disks, have been placed in the care of Frank Gent of the Exeter Synagogue. He has been extracting the data from Rabbi Susser's disks, and publishing these, both in booklet form and on this site, in honour of Rabbi Susser's memory and his work for the Jews of South West England, both present and past. http://www.eclipse.co.uk/exeshul/susser/
In light of the newly released movie A Perfect Storm, researchers may be interested to learn about the October 1881 East Coast Gale. On the night of 14th October 1881, there was a tremendous westerly storm, which affected most of the east coast of Britain. The loss of life, particularly among the fishing fleets, was tremendous. Scanned images of newspaper articles about the storm plus surname, deaths, fishing vessel, and sinkings indexes are provided to the articles. http://www.richard-white.freeserve.co.uk/storm/1881gale.html
Was Your Ancestor a Doctor? This article has been written for those who have a Doctor in their family tree and wish to research their training and accomplishments. It was originally published (in a somewhat different form) in the Channel Islands Family History Journal. http://user.itl.net/~glen/doctors.html
UK 1901 CENSUS DIGITISATION PROJECT AT PRO
The Public Record Office (PRO) has issued a new Fact Sheet about the Project and the first in a new and regular series of updates to keep researchers informed about the latest news on the 1901 Census Digitisation Project. Quoting from their website: http://www.pro.gov.uk/census.htm
Scanning and transcription began on schedule. We are currently discussing how the online service will operate, in particular the basic screen layout, movement between screens and the supporting on-line help systems. We are also looking in detail at the different types of accounts and how they will work so that we can give users more details. Meetings with the Advisory Panel are continuing; our next one is scheduled for 25 July. We hope to be able to show a prototype of the screen layout and online navigation through the system at this meeting.
Basic Fact Sheet and Updates
We have written a new basic fact sheet which replaces all the Information Sheets issued to date. To complement this basic sheet we intend to issue a new series of Updates on the project starting with this one. Our second Update will tell you about the public briefings we have been giving at venues up and down the country between March and June.
Members of the 1901 Team have been addressing audiences up and down the country over the past three months. Feedback from users has been very positive and many of you are clearly looking forward to the new service. There have been lots of questions about the Project which we will detail in our next Update. If you are from a Record Office or Library and missed out on offering yourself as a venue for a talk then its not too late as we are taking bookings for the autumn. Contact Margaret Brennand on 020 8876 3444 ext 2378 with your diary to hand.
Some dates to note:
Wednesday 21 June : 7pm at the Assembly House, Norwich
Saturday 24 June: the Yorkshire Family History Fair at York (staff from the 1901 Team will be available throughout the day to answer your questions)
Thursday 3 August 6pm at the Central Library, Newcastle
A fuller list of the autumn briefings will be available once bookings have been confirmed.
Regular information is available on the PRO web site http://www.pro.gov.uk/census. Source: http://www.pro.gov.uk/census/update1.htm
About Fawne Stratford-Devai
Fawne Stratford-Devai's work on Land Records and early Ontario records is well known in the genealogy community. A published author of several Canadian and UK research books, she has also contributed articles to the Ontario Genealogical Society's newsletter "Families" as well as writing for the online family history newsletter the "Global Gazette". Biography