We live in a digital world, and most of our important documents are stored in digital form. Many of our documents can only be found by searching through our email inbox.
However, some documents, such as wills, must be kept in paper form. This raises a concern: what happens when the original will is lost or destroyed? Or what if you cannot locate the original will of a loved one who has passed away?
There are a number of legal implications of lost or destroyed wills in Texas and the challenges that they present.
Admission of Lost or Destroyed Wills in Texas
The probate process in Texas starts with an application filed by the executor named in the will. The executor asks the probate court to admit the will.
This involves sending the original will to the court to review. The judge will actually inspect and read the original will in most cases.
Texas law allows for the admission of a will whether it is in the applicant’s possession or not. Even if the will is lost, destroyed, or outside of Texas, it can still be probated. This usually involves admitting a copy of the will and probating the copy.
However, the probate court is less likely to admit anything other than the original will to probate. Texas law presumes that the absence of the original will means that the will was revoked.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.
Challenges Presented by Lost or Destroyed Wills
Texas law requires that a will that cannot be produced in court must be proved in the same manner as a holographic will.
Witnesses, sworn testimony, and other evidence are required to prove a holographic will. Additionally, 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, particularly if there is a dispute as to the validity of the will, such as will contest litigation.
In such cases, the execution of the will or contents of the will may not be proven, and the lost or destroyed will may not be admitted to probate. The result is that the decedent is found to have died without a will, even though he or she may have actually executed a valid will.
This means that the decedent’s estate may have to proceed as an intestate probate administration.
Proof of Lost or Destroyed Wills
To prove a lost or destroyed will, the proponent of the will must provide evidence that the will existed, was duly executed, and was not revoked.
The probate court will require evidence of the contents of the will and its execution. The evidence may include witnesses, drafts of the will, or other documents that show the decedent’s intent to create a will.
In cases where the lost or destroyed will cannot be proved, Texas law provides for the distribution of the decedent’s property according to the laws of intestacy. Intestacy laws provide for the distribution of the decedent’s property to the closest surviving relatives, as defined by law.
If you are facing probate issues in Texas, Kreig LLC offers a FREE attorney consultation by calling (281) 219-9090. Our experienced probate attorneys will work with you to provide the guidance and support you need during this difficult time.
Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with lost wills. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.