Probate Law and Litigation | Farrow-Gillespie Heath Witter LLP | Dallas, TX

How to Probate the Copy of a Lost Will

Illustration by Chris Elam

 

 

You’ve searched everywhere –the desk, file cabinet, footlocker, safe, attic, shed, and safe-deposit box at the bank. But you can’t find the original will.

You call the attorney who prepared it. No luck. No original can be found anywhere.

Or maybe you can’t tell whether the document you have is the original or a copy.

Can you still probate the will?

The good news is: Yes!  You can probate a copy of the will.

 

How to Probate a Copy of the Will

To probate a copy of the will in the state of Texas, first your application must include the names and addresses of both the beneficiaries and the heirs at law. While the beneficiary is anyone who receives something under the will, the heirs at law are determined by the laws of the state. The heirs might or might not be named in the will. If you are unsure of the testator’s heirs, consult your state’s probate code. After you have completed the application, you can give the application to an attorney to file with the court.

Second, the testator’s heirs need to be personally served with citation. This step usually includes a copy of the will and the filed application. Paying a process server or the sheriff or constable to serve citation can be expensive. You can avoid this expense by getting the heirs to sign a waiver of citation.

If there are heirs who don’t live in Texas or heirs for whom you don’t have an address, you can serve citation by publication.

The best approach is to get all the heirs to sign a waiver of citation. But if there’s any chance the heirs are going to oppose probate of the copy, it might be cheaper to do citation by publication.

After you have completed the necessary requirements, the next step is the hearing.

 

The Prove-up Hearing

Explanation

At the prove-up hearing, you will need to explain why the original will cannot be produced. Judges are generally lenient on this point if no one is contesting the will.

What the judge wants to know is that you looked for the original, couldn’t find it, and there’s no reason to believe that the testator, the person who wrote and executed the will, destroyed the original with an intention to revoke it.

When I was judge of Dallas County Probate Court #2, I heard everything from “The original was destroyed in a fire” to “It got lost while I was packing everything up to work for the President.”

You will also need to present evidence about the contents of the will. That’s not a problem when you have a true and correct copy of the original will.

The Testimony

Finally, you will need to offer testimony about the execution of the will. Typically, a will is accompanied by a “self-proving affidavit,” an affidavit that proves the testator’s witnesses have sworn under oath that they have signed and witnessed the will. The self-proving affidavit substitutes for live testimony about the manner in which the will was signed.

But wait, can a copy of a will be self-proved?

Self-proving Affidavit

When the original will is missing, the original self-proving affidavit is missing too.

Some courts let you offer evidence that your copy of the self-proving affidavit is a true and correct copy and that no one is questioning its authenticity. In that case, no live testimony concerning the execution of the will is required.

Judges who let you use a copy of a self-proving affidavit rely on Texas Rule of Evidence 1003 and case law applying that rule.[1]

Other probate judges make you bring a witness with personal knowledge of the facts and circumstances surrounding the execution of the will. These witnesses are commonly the subscribing witnesses who were in attendance when the original will was signed or the notary.

If the hearing is successful, the judge signs an Order admitting the copy to probate.

 

Conclusion

Every state has different rules, every court has different requirements, and every judge has different preferences. When seeking to probate a copy of a lost will, it is best to hire experienced counsel who understand the special rules that apply to copies to avoid surprises at the prove-up hearing.

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Probate Law - Chris Wilmoth - Farrow-Gillespie & Heath LLP - Dallas TX

Hon. Chris Wilmoth is a seasoned probate, guardianship, and trust litigator. He also conducts mediations and accepts appointments as a special judge. Mr. Wilmoth served as Judge of Dallas County Probate Court Number 2 from 2011 through 2014. He earned a Bachelor’s degree, master’s degree in English, and Juris Doctorate from Southern Methodist University, where he was a member of the Order of the Coif.

 


[1] See, e.g. Vince Poscente Int’l, Inc. v. Compass Bank, 460 S.W.3d 211, 216-17 (Texas. App. – Dallas 2015) (refusing to apply a local rule that requires “good cause” for admission of a copy).

Probate Law - Farrow-Gillespie & Heath LLP - Dallas, TX

Dallas County Probate FAQs

Farrow-Gillespie & Heath LLP - Dallas, TX

Q1:  Can I probate a Will without an attorney?

Unfortunately, no.  The Probate Courts do not allow individuals to appear on behalf of themselves.  For all purposes in Probate Court, you must hire a lawyer.

Q2:  I’ve been appointed as the Executor of a Will.  What am I supposed to do?

A:  The first things you should do are (1) find and secure the original Will; and (2) contact a probate attorney to assist you. Your probate attorney will explain exactly what will happen, and exactly what you need to do.

Q3:  I am the Executor, and I have the original Will.  Why does it need to be probated?  Why can’t I just give away the property according to the Will’s terms?

A: If any of the property to be distributed is held under a “title” — such as a house, vehicle, bank account, or real estate — you need authority from the probate court to transfer that title to the new owner.  By probating the Will, you as Executor obtain the authority (by receiving Letters Testamentary) to legally distribute the decedent’s property and to transfer ownership to the Will’s beneficiaries.

Q4:  What if I want to contest a Will? 

A:  Contact a probate attorney immediately.  If you want to contest a Will, you have a limited time in which to do so; and under the rules of Probate Court, you cannot proceed without the assistance of an attorney.

Q5:  What if the Will doesn’t provide for an independent representation?

A:  If the Will does not provide for an independent representation, or if the Will is otherwise not in order, the process is lengthier, more difficult, and significantly more expensive.  That is why it is important to have a properly drawn-up Will.

Q6:  What if there is no Will?

A:  If there is no Will, and the decedent owned property worth less than $50,000, it is possible to file a “Small Estate Affidavit” to transfer the property.  If the decedent owned property worth more than $50,000, the next of kin (or other close relative) must retain an attorney to have the Probate Court legally declare the names and shares of the decedent’s heirs.

Q7:  All the deceased person owned was his or her home.  Does the Will still need to be probated?

A:  Yes.  Otherwise, it is not possible to maintain the “chain of title” necessary to protect and transfer ownership in the house.  However, an abbreviated and less expensive form of probate is available in Texas when a decedent owns only a home and no other significant property.  The procedure is called a “Muniment of Title.”  Be sure to tell your probate attorney at the initial consultation that you believe the only property in the estate is the decedent’s house.

Q8:  I have looked everywhere for the original of the Will and can’t find it.  What should I do?

A:  It may be possible to probate a copy of the Will.  Also, it may be that the decedent had a safety deposit box to which you do not have access.  We can assist you in finding the box and obtaining a court order to gain access to it.

Probtae Law - Farrow-Gillespie & Heath LLP - Dallas, TX

The Texas Probate Process for a Valid Will

The Executor of a Will has the responsibility of submitting the Will for probate.  Under the rules of the probate courts, an individual desiring to probate a Will must be represented by an attorney; and the attorney must appear in court on behalf of the executor of the will whenever a court appearance is required.  The first steps an Executor should take are (1) finding the Will and putting it in a secure place; and (2) contacting a probate attorney.

If a Texas Will properly provides for an Independent Representation, the role of the probate court (and thus the expense to the estate) is minimized — and the procedure is quick and easy.  If the Will is in order, and no will contest is filed, the Will can be probated in as little as two or three weeks, at a fixed fee.

Assuming that there is no will contest or other significant delay or complexity, the usual procedure for probate and administration of a valid Texas will naming an independent executor is as follows:

  1. As your attorneys, we file the original will and an application for probate with the probate court.
  2. A 10-day waiting period ensues while the court publishes notice that the will has been filed.
  3. After the 10-day waiting period, a hearing is held on the application for probate.
  • The Executor of the will (or someone close to the decedent whom the Executor designates) must accompany us to the hearing.
  • If the will is being probated in Dallas County, the hearing is held on the 2nd Floor of the Records Building, on the corner of Main Street and Houston, in downtown Dallas.
  • The Executor must testify as to the date of death and other facts.  We will go over the testimony with the Executor in advance of the hearing, and we will answer any questions that the Executor has about the hearing or any other aspect of probate.
  • To serve as Executor, a person must not be
    • a legally incapacitated person;
    • a convicted felon;
    • a non-resident of Texas, unless the person appoints a resident agent in this State; or
    • a person whom the court finds unsuitable.
  1. The Executor must sign the Executor’s Oath, which will be notarized and filed with the court clerk.
  2. After the hearing and the filing of the Oath, the court clerk will issue “Letters Testamentary.”  The Letters Testamentary are certified documents that serve as authority for the Executor to do everything that must be done – e.g., transfer title to property, access bank and brokerage accounts, sell assets, distribute cash and other assets to the beneficiaries, etc. — to administer the estate.
  3. We will send the following notices; and we will then file with the court clerk proof that the notices were sent:
  • Mandatory published notice (in the Daily Commercial Record) to general unsecured creditors.
  • Mandatory notice by certified mail, and a copy of the will, to each of the named beneficiaries.
  • Mandatory notice by certified mail to each secured creditor, such as mortgage holders.
  1. The Executor must arrange for a final tax return to be filed for the decedent, and possibly for a tax return to be filed on behalf of the estate.  We can recommend a CPA for those tasks, if you do not already have one who is experienced in filing estate returns, or we can do the returns ourselves, as you prefer.
  2. The Executor must contact all insurance companies with which the decedent held life insurance policies, and all institutions at which the decedent held retirement accounts, to ascertain whether the proceeds are probate assets or non-probate assets.  We will do these tasks for you if you prefer; and we can advise how to distribute the proceeds from these assets.
  3. The Executor is responsible for making a written Inventory of the estate.  We can assist in this process to whatever degree the Executor prefers.
  4. In the event the deceased person owed money to creditors, and the creditors file a valid claim with the Executor, the Executor must pay those valid claims out of the estate’s funds.
  5. After the Inventory is completed and filed (or an affidavit of completion and delivery is filed instead), and valid creditors are paid, the Executor must proceed to carry out the terms of the will.  The Executor may need to sell certain assets, but in any event, the Executor must transfer and distribute all of the bequests to the named beneficiaries.  We can assist you in that process at an hourly charge, including drafting any deed transfers or other documents that are necessary.  Once Letters Testamentary are obtained in an Independent Representation, no permission from or involvement by the court is necessary to sell any of the assets, or to distribute the bequests. However, the Executor should keep good records of every transaction; and in some estates, it is a good idea to obtain receipts and releases from each beneficiary as his or her distribution is completed.
  6. Once the terms of the will are satisfied, the process is complete. Nothing further needs to be filed with the court.