May 29, 2018

What Happens if You Lose an Original Will?

Probate Law Blog

Houston Probate Attorney

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We live in a digital world–well, most of our important documents do.  Even today there are some documents that have to be kept in paper form.  A will is an example.  This begs the question, what happens when you lose your original will?  Or what happens if you cannot locate the original will for a loved one who passed away?

Lost or Destroyed Wills in Texas

In Texas, the probate process starts with an application.  The application is typically filed by the executor named in the will.  The executor asks the probate court to admit the will.

Texas law goes on to say that a will can be admitted if it is:

  • Written or unwritten (as in the case of an oral will),
  • In the applicants possession or not,
  • Lost,
  • Destroyed, or
  • Outside of Texas.

This makes it clear that a lost or destroyed will can be probated in Texas.  So you might be thinking, why bother keeping up with the original will if Texas law does not require the actual will?  Won’t a copy suffice?

Challenges Presented by Lost or Destroyed Wills

The answer is that the probate court is less likely to admit anything other than the original will to probate.  Texas law provides a presumption that the absence of the original will means that the will was revoked.  This puts the burden on the proponent of the will to prove the will.

This gets to the difficulty of a lost or destroyed will: proof.

Texas law goes on to say that a will that cannot be produced in court has to be proved in the same manner as a holographic will (a holographic will is one that is in the decedent’s handwriting and that doesn’t follow all of the formalities required for wills under Texas law).

It can be difficult to prove holographic wills.  Witnesses, sworn testimony, etc. are required.  In addition, the cause for not producing the will has to be proven and the contents of the will also have to be proven.   This difficulty equates to extra time, energy, and costs.  This is especially true if there is a dispute as to the validity of the will, such as will contest litigation.

There are a number of court cases where the execution of the will or contents of the will could not be proven.  The lost or destroyed will was not admitted to probate in these cases.  The result is that the decedent was found to have died without a will, even though he or she may have actually executed a valid will.

Do you need help with a probate matter in Houston or the surrounding area?  We are Houston probate attorneys.  We help clients navigate the probate process.   Call today for a free confidential consultation, (713) 909-4906

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