Can I Probate a Lost Will in Texas?

by Russell Aldrich | November 15, 2023

In Texas, a lost or destroyed will can still be admitted to probate if the person seeking probate of the will can establish its existence, its contents, and the circumstances surrounding its loss or destruction. This typically involves presenting evidence and witness testimony in a probate court.

Reasons why a will might be lost

Some common reasons why the will of a deceased person cannot be found include:

1. Accidental loss or misplacement. A person may have unintentionally misplaced the will, or it could have been lost during a move, a fire, or a natural disaster.

2. Intentional destruction or hiding. Someone may have deliberately destroyed or hidden the will to prevent its admission to probate because the will excludes or is otherwise unfavorable to them.

3. Incomplete or outdated copies. Sometimes, a testator may have multiple drafts or copies of a will, and the most recent or valid version may be lost or misplaced.

4. A common mistake people make is to lock their will in a safe deposit box without arranging to provide another person to access the box in the event of their death. Surviving family members may require a court order to access the safe deposit box to obtain the will for probate.

Where should I look to find a will that is lost?

1. Home search. Check obvious places in the home first: filing cabinets, safes, desks, and other storage areas.

2. Ask relatives and close friends. Sometimes, the testator (i.e., the person who made the will) might have mentioned where they kept it, or even given a copy to someone they trust.

3. Contact the drafting attorney. If you know the attorney who prepared the will, contact them. They often keep copies or the originals of important documents, or they might have a record of where the will was stored.

4. Check with the deceased person’s bank. If the deceased person had a safe deposit box, the will might be stored there. However, if you don’t have the appropriate permission or legal authority to access the safe deposit box, the bank may require you to obtain a court order first.

5. Contact local courts. Texas allows wills to be deposited with the local county or probate clerk for safekeeping. Contact the relevant court with probate jurisdiction in your county and inquire as to whether the decedent’s will is in its possession.

6. Check the probate docket. Actively monitor the local probate records to see if another person has applied to have the lost will admitted to probate.

If you cannot find the missing will, you may need to consider that the testator may have revoked and intentionally destroyed the will in question in favor of a newer will. If this is the case, finding the latest valid will is crucial.

Are there any conditions that allow you to probate a lost will?

Texas law provides for the probate of a lost will in limited circumstances; however, the process to probate a lost will is complex and fraught with challenges.  The steps to probate a lost will include:

1. Providing notice to intestate heirs. Section 258.002 of the Texas Estates Code requires that notice be given to any intestate heirs of the decedent because those individuals may lose their right to inherit should the lost will be admitted to probate.

2. Establishing that the will was validly executed. This generally requires testimony from at least one witness who saw the testator sign the will and can attest to its validity.

3. Proving the will’s contents. The person seeking admission of the lost will must provide the court with a copy or an accurate description of the will’s contents, which can be done through witness testimony or other forms of evidence, such as notes or drafts.

4. Explaining the will’s loss or destruction. In Texas, if the original will was last seen in the possession of the testator and cannot be found after their death, there’s a legal presumption that the testator destroyed the will with the intent to revoke it. The person seeking admission of the lost will must overcome this presumption and show that the will was not intentionally revoked or destroyed by the testator but rather due to circumstances beyond their control. The person seeking probate must also demonstrate that they have made a diligent effort to try and find the lost will.

If the court is satisfied with the evidence presented, it may admit the lost will to probate, and the estate will be distributed according to its terms. However, if the court is not convinced, the estate may be distributed according to the state’s intestate succession laws, which apply when someone dies without a valid will in place. 

What if I have a copy of the lost will?

The admission of a photocopy of a will to probate is governed by the same rules and requirements pertaining to the admission of a lost will to probate. Indeed, Texas law makes no distinction between the two: anything other than an original will – whether there is a photocopy or not – is considered lost for legal purposes. A person seeking to probate a copy of will must provide satisfactory proof of the original will’s validity and contents, as well as evidence necessary to overcome the presumption that the decedent destroyed the original will.

The court will not merely rely upon the text contained in the photocopy as proof of its contents or validity; rather, witness testimony will be required to show that the copy of the will is, in all respects, identical to the original. The ideal witness, therefore, will be able to testify that they have seen the original will and that they are sufficiently familiar with its contents to verify that the copy of the will is a true and correct one.

Conclusion

It’s worth noting that lost will cases are not uncommon in Texas, and each case is unique in its facts and circumstances. If you are facing a situation involving a lost will, it is advisable to consult with an experienced probate attorney who can help you navigate the complex legal process.