08 May Additional Steps For Probating A Copy Of A Lost Will In Texas
The process for court approval (probate) of an original will is generally not difficult in Texas presuming the will was properly drafted and that there was no contest to its validity.
However, if the original of the signed will cannot be located, it is more problematic since it is presumed to have been destroyed. As a result, additional proof is needed prior to the court approving the will is valid including the following:
- Names and addresses of beneficiaries under the will as well as the heirs at law.
An heir (i.e., a child of the deceased) may not be named as a beneficiary of the will. Thus, if an heir was not named in a will as a beneficiary, there is greater likelihood the will may not be approved by the court since the omitted heir may object.
- Service of citation.
All beneficiaries and heirs must be served with citation or waive their right to be served with citation. If all beneficiaries and heirs are in agreement, it is cheaper to have them sign a waiver (filed with the court) of their right to be served. Sometimes personal representatives will need to sign the waiver (i.e., the guardian of a minor or the executor of an estate if the beneficiary/heir is deceased).
- Prove why the original will cannot be found.
Since there is a presumption that the will was destroyed by the testator if it cannot be located, the court will need some testimony as to why the original could not be located (i.e., the person in possession either had dementia or was disinherited).
- Self-proving affidavit.
Under Texas law, a proper (if done pursuant to state law) self-proving affidavit will result in no need to bring witnesses to court to testify that the deceased (testator) was of sound mind, and over the proper age (as well as the witnesses) and that the witnesses saw the testator sign the will and in the presence of each other. However, in the case of probating a copy of a will, some courts may require testimony of witnesses since it is not an original will. Contents of the will can be confirmed by someone who witnessed the will being signed.
- Some courts require the appointment of an attorney ad litem.
Some courts require the appointment of another attorney to represent the interest of any heirs that cannot be located.
Since there is no guarantee a court will approve a photocopy of a will and there are additional steps needed for a photocopy than a will that is an original, an exhaustive search should be made to find the original will. However, if all the heirs and beneficiaries are the same or if there is no contest to the application, the odds for approval of the will should be increased.
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