Wills and Probate Explained

Wills are legal documents that outline a person’s wishes for the distribution of their assets following their death. Their contents can provide information that help to piece together a family tree and reveal more about the life of an individual. Understanding the key elements of wills, and the process of probate, can therefore help family historians in making sense of it all.

Wills

In a will, a person details how their assets are to be distributed after their death. It names the individuals who are to receive assets such as property, money, and possessions as well as the executor who must carry out the instructions in the will and distribute the assets appropriately. Wills are legal documents and must be properly witnessed to be legally valid, which is something that is determined during probate.

Key Elements of Wills

The testator is the person whose will it is. The will records their wishes, their name, address, and sometimes their occupation.

Beneficiaries are the people who inherit from the estate. The will includes their names and relationships to the testator.

Executors, named in the will, are responsible for carrying out its instructions and ensuring the beneficiaries receive their inheritance.

Bequests are the specific items or amounts of money left to beneficiaries.

Witnesses are people who witness the signing of the will.

Probate

Probate is the legal and financial process involved in dealing with the estate of someone who has died. It validates a will and oversees the distribution of the deceased’s assets. The process involves confirming the executor’s authority to manage the estate, paying any debts and taxes, and selling and distributing assets according to the will.

Ecclesiastical Courts

The Court of Probate Act of 1857 reformed the administration of wills and estates in England and Wales. It also established the probate registry in 1858 and transferred administration from an ecclesiastical system to one more secular and centralised.

Prior to the formation of the Principal Probate Registry on 12 January 1858, ecclesiastical courts dealt with probate. These church courts formed a network of over 200 and the executor had to present the will at the appropriate one.

The court then examined the validity of the will to ensure it met legal standards and was properly witnessed. If it did, and the will remained uncontested, the court granted probate. The executor then had the authority to distribute the estate according to the will.

The court wrote a copy of the probate grant in the court’s probate registers and a copy of the proved will in the will books. Family historians use these documents to read wills.

Types of Ecclesiastical Courts

There were four different types of ecclesiastical courts that formed the probate court system. These were as follows:

Peculiar Courts: Operated in areas exempt from the jurisdiction of the bishop and archdeacon. They were presided over by ecclesiastical or lay lords and sometimes often dealt with estates from a village, but could cover wider areas.

Archdeaconry Courts dealt with the smaller estates contained within an archdeaconry.

Bishop’s Consistory Courts or Commissary Courts dealt with estates within a bishop’s diocese. This may include larger estates with assets in more than one archdeaconry but within in the same diocese.

Prerogative Courts dealt with larger or more complex estates. The Prerogative Court of York and the higher level Prerogative Court of Canterbury. Whilst the former dealt with large estates in the northern province, the latter dealt with those in the southern province or estates with assets in both provinces.

Dates

In the court volumes, every will contains two dates written fully in words. The will itself includes the first date, indicating when it was written. The second date, found in the paragraph added below the will, indicates the day the court proved the will and awarded probate.

In addition, there may be other dates indicating when certain payments must be made to the beneficiaries. Quarter days, for example, were used for administrative purposes and were often mentioned by name rather than the date:

• Lady Day (25 March)
• Midsummer Day (24 June)
• Michaelmas Day (29 September)
• Christmas Day (25 December)

More information about these quarter days is available on this page and an example of their use can be found in the will of Joseph Elderfield (1707-1792), which mentions Lady Day and Michaelmas Day regarding an annuity.

Ecclesiastical Court Records

In addition to the volumes of records kept by the court to record the will and details of probate, other records court records exist. Firstly, inventories provide a detailed list of the deceased’s possessions. The Act Books record the proceedings and decisions of the court. Although these may not be as readily available as other records, not surviving the test of time, they can help shed light on the past.