PROBATING A COPY OF A WILL – WHERE THERE IS A WILL, THERE IS A WAY (ALTHOUGH MORE DIFFICULT)

11 Mar PROBATING A COPY OF A WILL – WHERE THERE IS A WILL, THERE IS A WAY (ALTHOUGH MORE DIFFICULT)

What happens if your loved one dies and you need to collect their assets and pay the debts of the deceased if you only can locate a copy of the will (not the actual will that was signed)?

Of course, even if you have an original will, an executer (who is responsible for (a) collecting the assets that do not have beneficiary designations or are not held in trust, (b) paying the bills of the deceased, and (c) distributing the remaining assets of the estate) has no authority until the court process of approving the will (probate) has been accomplished.

Generally, probate of an original will is not difficult in Texas if there is no will contest and assuming the will was properly prepared.

However, sometimes only a photocopy of the will can be located. The Texas Estates Code provides how a copy of a will can be probated (although some courts are more strict on meeting the requirements than other courts). The additional steps for probating a copy of the will are as follows:

1. Application Must Include Both Beneficiaries and Heirs
   A beneficiary is the devisee named in a will. Heirs at law are the closest relatives who would be a beneficiary if there was no will pursuant to state law. The names and addresses of the beneficiaries and heirs must be included in the application. If an heir was not named as a beneficiary in the will, it is more likely the will would not be approved since the heir would not likely approve of the copy of the will being admitted to probate (since they could inherit otherwise).
2. Citation
   The beneficiaries and heirs must either be served with citation (by a sheriff or constable) or they can waive service of citation (which is usually quicker and less expensive).
3. Prove to the Court Why the Original Will is Missing
   If the original will cannot be located, it is presumed that it has been destroyed. As a result, the court will need a reason why the original could not be found (i.e. the one in possession had dementia).
4. Witness Testimony
   Unlike probate of an original will where it is not necessary to have a witness testify if there is a self-proving affidavit (witnesses swear (a) they saw testator sign, (b) the testator was of sound mind and (c) the testator and witnesses were of proper age). A credible witness (not necessarily disinterested) must testify who either read the will (or a copy) or has heard the will read can identify the will.

As a result, it is best to try to locate one of the witnesses who signed the will. However, some courts let you offer evidence that the self-proving affidavit is a true and correct copy, and, if no one contests, then some judges permit the usage of that.

Some courts require the appointment of another attorney (the ad litem) to represent the unknown heirs (heirs who can’t be found, if any). Two disinterested witnesses would then be needed to swear about their knowledge on the identity of the heirs at law.

So, even with a copy of a will, there is a way. There are just additional requirements with no guarantee of success. It is best to keep your original will in a safe place (i.e. a fireproof safe) that your executor or family can access so the additional steps needed for probating a copy of a will can be avoided.

If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.