How to Probate a Will When the Original Is Lost
Published on April 25, 2023 Law Practice Tips
This article was based on “Lost Wills” by Russell W. Hall
When it comes to probate in Texas, original wills are the way to go. But if a will is missing or destroyed, then probating becomes much more difficult. You can avoid future headaches by safeguarding the original.
But what if you’re unable to find the original? While it’s possible to use a copy of the will, the probate process becomes much more complex—and for good reason. Texas has additional requirements in place to make sure that everyone has a chance to be heard. This means disinherited and inherited individuals alike will have a chance to contest the copy of the will.
Let’s go over what to expect from probate in Texas.
THE PROCESS OF PROBATING AN ORIGINAL WILL
First, let’s look at the best-case probate scenario. An individual makes a will and doesn’t change their mind. They must sign a typewritten will before two witnesses, then a notary must take everyone’s acknowledgment and attach a self-proving affidavit.
Once the individual dies, they cannot testify. The witnesses won’t have to testify either. Even though the probate application is public, no one will receive an advance copy or personal notice. The hearing is prompt and fast.
WHAT HAPPENS WHEN A WILL GOES MISSING OR IS FRAUDULENTLY DESTROYED
If someone creates a will and later decides to change it, the easiest way to revoke the old will is to destroy it. This is often not the best course of action because it can be difficult to prove if the testator intended to revoke the will or if a person acting with bad intent destroyed the will. A will is not revoked if someone fraudulently destroys it.
If the decedent dies and their will goes missing or is mysteriously destroyed, then many difficult-to-answer questions will bubble up to the surface. Is the will missing because the decedent didn’t want it probated? Or because someone else didn’t want it probated? Texas has extra requirements to probate a will when the original is not available to ensure that the inherited and disinherited parties have a chance to be heard.
HOW TO PROBATE A WILL WHEN THE ORIGINAL IS NOT PRODUCED
If the original will is lost but a copy turns up, then this is the second-best scenario. It will result in more work, notice to interested parties, informed witnesses, and delays, all of which translate into more expenses.
Having a copy isn’t the end-all-be-all, however. A hard target search for the original must take place. Everything from county clerk records to safe deposit boxes are checked. If this search doesn’t yield the original will, then the disinherited parties will be informed so they can contest it.
In contrast, if the original will is found after a search, then those who were disinherited won’t be able to contest the disinheritance. In some counties, an attorney ad litem may be appointed to ensure everyone who was disinherited is identified and informed.
Even if no one contests, admitting a lost will to probate is more difficult. Additional evidence will be required. Witnesses will need to explain the contents of the lost will, why it can’t be found, and give testimony that it wasn’t revoked.
AVOIDING ISSUES RELATING TO LOST WILLS IN TEXAS
Accidentally losing an original will is an expensive mistake. To avoid any issues, those planning to revoke a will should make a new one with a self-proving affidavit instead of simply destroying the old one. While that process is taking place, safeguard the original will and let your executors know where they can find it.
Some lawyers keep their clients’ original wills but if your lawyer gave you the original, you should invest in a safe deposit box. Make sure to add your executors to the box agreement so they can access it without going through probate. This ensures the original will can be found when needed. If you prefer a home safe, be aware that locksmiths are expensive and often don’t respond to executors without a court order. If you decide to go that route, make sure your executors have or can find the combination.
FACE ANY PROBATE-RELATED CHALLENGE WITH EASE
Lost wills are only the tip of the iceberg when it comes to probate issues. For a closer look at lost wills, read this blog post from Russell W. Hall (Editor and Project Director for the 2022 edition of the Texas Probate System).
To overcome any probate and estate planning issue that may come your way, consider adding Wills Road Map: Practical Considerations in Will Drafting, 3rd edition and Texas Probate System, 2022 ed. to your library.
For a closer look at probate, consider registering for the following Texas CLE courses:
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