What happens when you cannot locate someone’s will to submit it to the probate court for authentication?
It’s frustrating when you can’t find the original documents, but you know that the will exists because you have a copy in your hands.
The original may have gone missing because the testator simply misplaced it or threw it out on accident (both of which can happen for any number of reasons, but especially if a testator was seriously ill or had dementia before their death). Or, someone may have intentionally destroyed or hidden the original because they weren’t happy with its terms. Sometimes, the testator simply locks the will in their bank vault box without realizing that they never gave anybody the ability to access (or find) their box.
You can still proceed – but there are extra steps
Texas law does provide for the ability to probate an estate even when the will is lost or only a copy can be found. To proceed, you must:
- Provide notice to any intestate heirs: These are the people who would stand to inherit from the estate if there were no will at all. They could lose significant rights if a copy of the will is used, so the notice allows them to raise legal challenges to the process.
- Establish that the will was valid: Any evidence you can find that supports the fact that the copy you have is a true reflection of the testator’s wishes should be submitted to the court. This is often done through eyewitness testimony from those who were there when the will was executed, but can also include correspondence with the testator before their death about their will.
- Overcome the presumption the will was vacated: The law generally presumes that a missing will was revoked by the testator, so you must seek to overcome that presumption by submitting evidence that shows the will likely went missing for some other reason. For example, perhaps the original will was destroyed in a house fire or a hurricane.
Because probating an estate with a copy of a will can get complicated, it is wise to seek experienced legal guidance before you begin.