Wills and Where to Find Them

Chad Hanna and Gillian Stevens - 22nd February 2013 - speaking at Who Do You Think You Are? Live! at Olympia

some parts of this article were updated on 13th November 2013

Wills and Probate in England and Wales

Gillian Stevens and Chad Hanna

What are we talking about?

  • How is Will made? – it hasn’t changed much
  • What happens when a Will is proved (probated)?
  • How can you find out where a Will is?
  • How you can get a copy of the Will and other probate documents?

Why make a Will?

  • Have a significant amount of property
  • Make sure people get a ‘fair share’
    • Some may have already received property
    • Some (e.g. widows, young children, illegitimate children) need special provision
  • Do something worthwhile – charity, church and alms for the poor
  • Be remembered – point to make

Words you will see

  • Will – A description how the testator wishes his estate to be dealt with, describing how it is to be divided and who it’s going to be given to. Historically the Will dealth with ‘real’ property i.e. land
  • Testament – historically, how the testators ‘personalty’ or personal, moveable goods should be dealt with.
  • Codicil – a latter addition or change to a Will, made without revoking the Will.
  • Testator (male) or Testatrix (female) – The person who makes the Will
  • Legacy – something ‘left’ in the Will by the testator to another person (the beneficiary)
  • Beneficiary – a person (or organisation) receiving goods or other property left in the Will
  • Residue – Residuary Estate – what’s left after all other property has been given away and includes anything not mentioned in the Will, e.g. copyright in letters written, snapshots taken by the testator
  • Devise and Bequeath – ‘real’ property such as land is devised to the beneficiary, while other goods and chattels are bequeathed.
  • Witness - normally two, who watch the testator sign the Will and then sign the Will themselves – they cannot be beneficiaries of the Will and nowadays are often members of the solicitor’s office.
  • Probate – is granted by the court, or registry, to the persons who will deal with the Will, after they have determined the likely value of the estate – which allows any tax to be calculated.
  • Executor (male) or Executrix (female) – each person (usually two) named by the Testator in the Will to deal with the estate.
  • Revoke - stating that the Will is to be ignored, normally includes destroying any previous Wills or Codicils to prevent any possible confusion.

Note: Marriage, or Divorce, will automatically revoke any Wills made by the Bride and Groom, unless the Will states it was made ‘in anticipation of marriage’, and so on.

Probate

After the death of the testator, the executors request a Grant of Probate from the probate registry or court.

An Administration is granted (to Administrators) if the person died intestate (without a Will) or there are no executors

How to find a Will after 1858 in England and Wales

From 12 January 1858 Grants of Probate (Will) and Letters of Administrations (Admons)  have been collected into a National Calendar (a name index with other significant details). In earlier years, Probates and Admons were collected into separate books for each year before being combined. From 21st October 2013 the complete set of calendars can now be found at:

Court 38, Royal Courts of Justice, Strand, London WC2A 2LL
Tel 020 7947 6997

More details of the Probate Service can be found on the Ministry of Justice website

The Calendar tells you (at least)

There is additional information for the earlier years, but the least is:

  • full name
  • last address
  • the date of death
  • the type of grant issued (Will or Admon)
  • the Probate Registry at which the grant issued and the date of issue
  • the value of the estate

Other information may include occupation

Other copies of the post 1858 Calendar

The Calendar for the years 1858-1966 can be searched on Ancestry.co.uk

May be found locally at:

  • Record Offices (e.g. Berkshire Record Office)
  • Family History Societies
  • Local Studies Libraries and so on

Usually for shorter periods e.g. 1858 to 1943

How to get a copy of a post-1858 Will

Either in person at Court 38, The Royal Courts of Justice, or go to http://www.justice.gov.uk/courts/probate/copies-of-grants-wills where there is information and a form for obtaining a copy of a will by post.

The current price for a copy of Will with Grant is £6 including a search for four years after the date of death. Remember that there can be a much longer delay between death and grant of probate. Proved Wills are public documents except for the very few (Royal Family) that are sealed.

Where are Wills from before 1858

The Probate of Wills was dealt with by the Church (ecclesiastical) courts. The simplified rules are:

Property in one Archdeaconry – Normally dealt with by the Archdeacon’s court

Property in one Diocese – Normally dealt with by the Diocesan (Consistory) court

Property in more than one Diocese – Dealt with by the Province

(Prerogative) Court Prerogative Court of Canterbury senior to that of York where there is property in more than province.

For example

  • Property in Reading, Berkshire – Berkshire Archdeacon's court
    • Wills at Berkshire Record Office, Reading
  • Also property in Chippenham, Wiltshire – Consistory Court of Salisbury
    • Wills at Wiltshire & Swindon Record Office
  • Also property in Witney, Oxfordshire (Diocese of Oxford) –Prerogative Court of Canterbury (PCC)
  • Wills at National Archives

Provinces of Canterbury and York

The Archbishopric of Wales was created in 1920 (i.e. after 1858)

The Province of York includes Cheshire, Cumberland, Durham, Lancashire, Northumberland, Nottinghamshire, Westmorland and Yorkshire.

The Prerogative Court of Canterbury takes precedence over that of York, if there is property in both provinces.

Many people have produced indexes

  • British Record Society books, many now available on Origins.net
  • Record Offices
  • County Record Societies
  • Family History Societies
  • Individuals

Some indexes include beneficiaries

Where to start?

Death Duty Indexes 1796 to 1903

  • There are many hundreds of courts granting probate to pre-1858 wills. Only a fraction have so far been indexed.
  • Death Duty Indexes have a national index so are a good aid for finding a Will
  • However they are complicated records.
  • But in their own right they are an absolute gem of information.

Getting a copy of a pre-1858 Will

  • Once you have found the correct index entry for a Will, hopefully the index source will give good information about how to obtain a copy of the actual Will.
  • Possible sources
    • online by following a given link
    • by post to a local Record Office or other repository

(An index to the probate documents of the Archdeaconry of Berkshire (1480 to 1857) is available on the Berkshire Probate Index CD, available from the society.)

Who made Wills in earlier times?

  • Approximately 10% of the population, but not uniform
  • Percentage varied across the country according to local custom
  • Of that tenth, typically 10% of Wills were made by women, predominately widows and spinsters until after the Married Woman’s Property Act of 1883

Do read up on Wills, especially for

  • ‘Peculiars’ – special jurisdictions
  • Death Duty records
  • Inventories
  • Probate Accounts
  • Property in more than one country
  • Property not dealt with in a Will
  • More property found at a later date

We want to see Wills because:

  • They can provide a ‘snapshot’ of the family
    • At the time the Will was written
  • They give an insight into what the testator thought of the family and other beneficiaries
  • The grant of probate, probate accounts and inventory (if any) can tell about the estate at the time of death
  • If the Will is contested then more information can often be found
  • About money and written by someone who should know – so should be accurate!

After death

  • The executor/executrix makes the funeral arrangements and pays the undertaker
  • They work out what you’ve got and what it’s worth (an inventory)
  • They prove the Will (and are granted probate and the Will is registered)
  • They sell anything that needs selling
  • They pay any taxes and divide the rest between the beneficiaries (setting up trusts if needed)
  • Everything needs to be accounted for

There is no Will?

  • There is standard set of rules
    •  effectively a default Will
  • Someone steps forward to administer the estate, often next-of-kin
  • There is a Grant of Administration
  • Property is divided according the rules (or earlier custom) of intestacy

Additional information