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. No one has a duty to deliver a copy of a will unless ordered by the probate judge.
There’s a different procedure to deposit your own will while you are still alive. Parts of those rules apply after your death. Section 252.201(b). Oddly, one requirement that survives death is that the testator (you), must sign the clerk’s envelope. Section 252.002(b)(1). Since you are dead, and no longer capable of signing anything, common practice is for the clerk to require the custodian’s signature instead. A courier can sign, but an attempted deposit by U.S. mail will fail.
In my office we use a form letter along these lines,
Enclosed please find the Will of [Decedent’s name], dated [date Will signed].
I am custodian of this Will and am delivering it to the clerk pursuant to Section 252.201, Texas Estates Code.
[Decedent’s name] died on [date of death]. At his/her death he/she was a resident of Harris County. His/her last known address was [home address (physical, not P.O. box)/unknown].
The name and address of each executor named in the will, including any alternate executors, is:
[Executor’s name, home address/address unknown]
[Repeat for each alternate executor: Alternate executor’s name, home address/address unknown]
The name and address of each devisee (beneficiary) named in the will is:
[Repeat for each named devisee: Named devisee’s name, home address/address unknown]
Please accept this Will, index it, and otherwise handle it according to Chapter 252, Subchapter E, of the Texas Estates Code. No application is anticipated at this time. According to Section 252.201(b), there should be no fee.
Thank you for your help.
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, the index is a public record, and available to support any probate application filed then or later.
The clerk is to inform the named executor first that the Will was deposited. The clerk will inform the named devisees if the executor doesn’t request the original Will or file an application to probate the Will within 30 days. The clerk may deliver the original Will to the first devisee that responds, and without further notice to the executor. Section 252.2015. Consider a unilateral agreement not to probate the Will from each devisee, reserving the named executor’s right to probate the Will. Here’s a form developed for a widow that deposited the will before paying specific bequests from her own funds. The deposit receipt number was added at the top of the release, instead of the cause number assigned when an application to probate the will is also filed.
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 for the custodian to do so, just the clerk, but it may help family understand the process if probate is needed later.
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.
Revision notes: First posted in 2018, this information was revised February 2024 to supplement the cover letter to the clerk with the addresses for named executors, alternates, and devisees. A receipt and release with an agreement not to probate was also added. These changes were prompted by new policies in the Harris County Clerk’s Office, Probate Department, that more closely followed the requirements of Chapter 252, Subchapter A (inter vivos will deposit), which by statute also apply to Subchapter E (post mortem will deposit).