In Texas, probate is not mandatory. Sometimes it’s not even necessary. Thanks to a trust or beneficiary designations, there may be no probate assets to collect. Or a title company allows the sale of the house with just an affidavit of heirship.
If someone in your family died, and probate wasn’t necessary, congratulations.
Someone may need that will later
A will that’s not worth probating now may be worth it later. A non-producing mineral interest turns into Eagle Ford Shale. A relative’s trust terminates, and the remainder is paid to Dad’s estate. Or the kids simply need to prove Mom took Dad’s share of the house before they can sell it.
There’s money on the table, and now everyone’s desperate to probate the will, if they can find it.
They tear up the house looking through Dad’s papers. They pay a locksmith to drill the safe deposit box or the safe at home. They call the old lawyer, and when they discover he died first, they run down his partners and harass his family. If they find a copy or a draft, they redouble their efforts, retrace their steps, and even run ads.
These scavenger hunts are crazy, a great waste of time and money, and easily avoided.
Leftover wills belong to the county clerk
When a testator dies, treat the original will like a hot potato. Don’t file it in a desk drawer, and don’t leave it in the safe deposit box, either. As a rule of thumb, if it’s been less than four years since the testator died, run it past a lawyer to determine whether probate’s necessary. If not, file the original will with the county clerk.
Which one? The one with probate jurisdiction. That’s generally the county where the decedent lived. If the decedent had no Texas residence, someone will have to pull the venue statutes (Estates Code, Chapter 33) to sort out where the will belongs.
Filing the will is not optional. Texas requires the custodian of an original will to file it as soon as they learn of the testator’s death. Estates Code, Section 252.201. Custodians who sit on wills may be arrested and confined until they cough it up, and are liable for damages for refusing. There’s no exception for “I forgot,” “No one told me,” or “My client expected me to keep it.” Yes, this applies to lawyers who hold wills, too. This does not apply to copies.
In my office we use a form letter along these lines,
I have received notice of the death of [Decedent’s name], who died on [date of death]. At his/her death, he/she was a resident of Harris County.
Enclosed please find the testator’s will. I am delivering it to you as the clerk of the court with jurisdiction of the testator’s estate. Tex. Estates Code § 252.201.
In Harris County the clerk wants the date of death as part of their indexing process. Other counties may have very different requirements. Fort Bend County, e.g., requires the address of each named beneficiary.
There is no fee for filing a will under Section 252.201. We include the citation to guide clerks who are not used to the process. So few people file wills without an application that it is helpful to remind the clerk why there is no charge.
Once the will is filed, it is a public record, and available to support any probate application filed then or later. If anyone needs the will, they can order a certified copy.
Pro tips
If you are holding an old will and are unsure whether the testator is living or where they lived, check Social Security’s Death Index. That’s a database of death records from the U.S. Social Security Administration’s Death Master file. It is available for free from several genealogy sites, including Ancestry.com.
If you do file a will under Section 252.201, consider giving notice to each person named in the will. It’s not mandatory, but it may help family locate the will if needed later. This is an especially good idea if, unlike Harris County, the local clerk does not index these wills or make copies available online.
Final thoughts
If everyone did their duty, and filed leftover wills, the search for many old wills would begin and end with the county clerk where the decedent lived. Rather than a wild goose chase, you could go online and check the county clerk’s probate index. In counties without online indices, a call to the clerk and (sometimes) a credit card can buy a search almost as quickly.
