Genealogist Chris Patonprovides an overview of the various inheritance records to be found in Scotland
Following an individual’s death in Scotland, it is possible for his or her assets to be conveyed to beneficiaries through the courts. In the rest of the UK the legal process for this is known as ‘probate’, but under Scots law the equivalent procedure is known as ‘confirmation’. While the Anglican church courts were responsible for the equivalent process in England, Wales and Ireland up to 1858, it has always been the case in Scotland since the year 1564 that the civil courts have handled confirmation cases. These were initially heard through the commissary courts, and subsequently through the sheriff courts from the middle of the 19th century.
For centuries the confirmation process was solely concerned with what was known as ‘movable estate’, such as money and physical possessions.
Through the Scottish inheritance laws, when a man died, his spouse was traditionally entitled to an automatic third of his possessions (the ‘widow’s part’ or ‘jus relictae’), and his children another third (the ‘bairns’ part’, or ‘legitim’). Only the final third could be bequeathed as he saw fit (‘the deid’s part’) through a ‘latterwill’, which could then be taken through the confirmation process. Not all families went through this procedure, however, with many settling the deceased’s estates privately between them. Prior to the 1881 Married Women’s Property (Scotland) Act, married women could not leave a will, only widows and spinsters, with the estate of a married woman prior to this having been granted to her husband as his ‘jus mariti’.
Appointing Executors
Through the confirmation process an inventory
would be carried out of the deceased’s possessions, and executors appointed by the court to administer the estate. If the deceased was ‘testate’, ie had left a will, then the court issued a document known as a ‘testament testamentar’, authorising an executor to oversee the estate’s distribution (similar to an English ‘grant of probate’). This would include a copy of the deceased’s will and an inventory of his possessions. If the deceased was ‘intestate’, with no will, the court-generated document was called a ‘testament dative’. This would also include an inventory, but without any will included it can be genealogically less helpful. Following confirmation prio
