The Case of the “Lost” Will: Can You Probate a Copy?

Estate Planning Attorneys Explain how Families in Sugar Land, Texas Deal with a Lost Will

In most instances, following the death of a Texas resident, his or her family or friends present the deceased’s original Last Will and Testament for probate. What happens, however, if the original cannot be found? Is it possible in Texas to probate a will without finding the original? Texas law does allow – at least under some circumstances – for the probate of a copy. In rare instances, it can even administer the estate through the terms of a will where even a copy is not available.

Was it Lost or Was it Destroyed?

One of the core issues in attempting to probate anything other than an original version of a person’s will is that under Texas law (and the law of most other states), destruction of the will is a valid means of revoking it. Under Texas Estates Code § 253.002, for example, a will is considered revoked if the person who signed it destroys or cancels it, or has someone else do that in his or her presence.

Presumption that Lost Will Was Revoked

The burden is on the person seeking to probate a copy of a will to show that the testator (the person signing it) did not actually revoke the will. When an original will cannot be located and was last seen in the testator’s possession, a presumption arises that the testator destroyed the will with the intent of revoking it.

Overcoming the Presumption

It is possible to overcome the presumption, however. Generally speaking, this is accomplished by offering evidence, in various forms, that tends to show that the testator did not desire to revoke it. For example, in one recent case, In re Estate of Calvillo, No. 05-16-00661-CV, 2017 WL 462353, at *5 (Tex. App. Jan. 26, 2017), the surviving spouse introduced evidence that showed, among other things, that there had been a burglary and important personal papers, documents, and valuables had been taken.

In another case, In re Estate of Perez, 324 S.W.3d 257 (Tex. Ct. App.–El Paso 2010, no pet.), the surviving spouse was able to show that the will was kept in a cedar chest and that several daughters, whose interests were adverse to those of the surviving spouse, had taken various items of personal property from that chest. The inference, of course, was that they had also taken the original will that left most of their father’s assets to the wife.

One need not always establish that an “interested” party took the will. The presumption of revocation can be overcome by evidence:

  • That the decedent recognized his or her will’s continued validity,
  • That the decedent had continued affection for the primary beneficiary of the will,
  • That no significant evidence indicated the decedent was dissatisfied with the will or had any desire to change or cancel it

Probating a Copy of a Will Ordinarily Requires Skilled Legal Counsel

It is unusual to offer a copy of a purported will for probate. As indicated above, where the original cannot be located, a presumption arises that it was revoked. Overcoming that presumption will, in virtually every instance, require the skills of an experienced probate attorney. Moreover, most legal experts would add that this type of case requires an attorney who is not only experienced in probate matters, but also skilled in litigation.

Romano & Sumner: Skilled Both in Probate and in Litigation

Texas BarToday Top Ten BadgeThe attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients in all sorts of estate and trust matters. While we have assisted clients in the handling of many routine matters, we have also successfully represented parties in complex litigation. We have handled contentious will contests. We have the extensive litigation experience to take your case as far as necessary.

At Romano & Sumner, we pride ourselves not only on our professionalism, but also upon our client service. We know that each situation is unique. We return phone calls within one business day. We keep our clients well informed as to the status of their case. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.

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    Romano & Sumner, PLLC

    Romano & Sumner, PLLC