Probating an original will is easy in Texas. Probating a copy is harder, and for good reason. Safeguard that original.
Revocation versus fraudulent destruction
What if you make a will and change your mind? The easiest way to revoke it is to destroy it. Thankfully, fraudulent destruction of a will by someone else doesn’t revoke it, but when you are dead and gone it’s hard to tell the difference. Is the will missing because you didn’t want it probated? Or because someone else doesn’t want it probated? To ensure both the winners and the losers have a chance to be heard, Texas has extra requirements to probate a will when the original is not available.
Probate of an original will
Suppose you make a will and don’t change your mind. Best case: you signed a typewritten will before two witnesses, and a notary took everyone’s acknowledgment and attached a self-proving affidavit. On death, you can’t testify, the witnesses don’t have to, and the original will is admitted to probate on the testimony of one person that wasn’t there and knows little more than that you died without revoking the will. Although the probate application is public, no one gets an advance copy or personal notice, the hearing is prompt and fast, and a legal notice in a local paper that no one reads is about the only warning anyone gets. Easy, peasy.
Probate when the original will is not produced
Same will, second best case: the original is lost, but someone finds a copy. More work, more and better informed witnesses, more notice, and more delay is mandatory, all of which means more expense.
A hard target search for the original will is required. Books and papers are ransacked, safe deposit boxes opened, attorneys quizzed, and county clerk records searched.
When the original will cannot be produced, everyone you disinherited is informed so they can contest the will. Crybabies don’t stand half a chance to complain when the original will is found; not so when it is lost. Some counties appoint an attorney ad litem to ensure everyone you disinherited is identified and informed, including the children you forgot to mention to your spouse.
Even if no one complains, admitting a lost will to probate is harder. Additional evidence, e.g., witnesses, are required to explain the contents of the lost will, why it can’t be found, and give testimony it wasn’t revoked. If the will was last seen with you, e.g., leaving the lawyer’s office, the presumption is you didn’t want it found because you revoked it. Overcoming that presumption requires even more evidence.
Losing an original will by accident is an expensive mistake. If you want to revoke it, make a new one with a self-proving affidavit rather than simply destroying the old one. In the meantime, safeguard the original and tell your executors where to find it. Best practice varies. Some lawyers keep clients’ original wills. If your lawyer gave you the original, a safe deposit box is a good investment. Add your executors to the box agreement, so they can access it without probate, ensuring the original will is found when needed. Prefer a home safe? Locksmiths are expensive, and may not respond to executors without a court order. Make sure the executors have or can find the combination.
The additional information and steps required for probate of a will not produced are found in the Texas Estates Code, Sections 256.054 and 257.053 (application), 258.002 (citation), 256.156 (proof), and 256.203 (findings). The clerk must issue different citation, and personal service on decedent’s resident heirs is required. Estates Code, Section 258.002. The will may not be probated before the required service, and so the clerk’s file should be reviewed to confirm compliance. Estates Code, Section 258.003. When a lost will was last seen in the testator’s possession, additional evidence that the will was not revoked is required to overcome the presumption of revocation. Estates Code, Section 256.152(a)(1); In re Estate of Glover, 744 S.W.2d 939 (Tex. 1988). Once a will not produced is admitted, certified copies of the contents as established by the order have the same dignity as certified copies of original wills and may be recorded in other counties and used in evidence. Estates Code, Section 256.203. For more information, see Special Instruction 85—Lost Wills, Texas Probate System (required modifications to usual forms, diligence and clerk’s records, model testimony).
Not just lost wills
The above statutes don’t refer to “lost wills.” Instead, the reader finds “Requirements When No Will is Produced,” “the will cannot be produced,” and “Will Not Produced in Court.” These statutes extend to circumstances where the will isn’t lost, but the original cannot be delivered to the clerk of the court. For example, imagine the original will was filed in decedent’s hometown in Louisiana, and the clerk of that court will not release the original. In those cases, the applicant often proceeds with a copy attested and certified by the foreign clerk and court as described in Estates Code, Section 501.002(c).
The Estates Code does not address self-proving affidavits that were properly completed but lost. However, copies are admissible under Texas Rule of Evidence 1003 (“A duplicate is admissible to the same extent as the original unless a question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.”). The rules of evidence generally apply to probate proceedings, including with respect to lost wills. In re Estate of Jones, 197 S.W.3d 894, 901 (Tex. App.—Beaumont 2006, pet. denied). Photographs, carbon copies, photocopies, and even handwritten duplicates may be admitted. Texas Rule of Evidence 1001(d). However, the Rule 1003 exceptions concerning authenticity and fairness invite litigation. As a practical matter, do not expect your probate judge to interpret Jones liberally, i.e., to admit copies of wills or self-proving affidavits absent strict compliance with the Estates Code provisions concerning wills not produced.