By Robert S. Morris
Wills only take legal effect when the person who made the will dies and the will is admitted to probate.
Probate is a legal process where a court hears evidence to prove that the will is valid and should be given legal effect. Normally this requires that the original will (not a copy) be filed with the clerk of the court. Most wills are self-authenticating, that is they have a self-proving affidavit where the person who made the will and the witnesses have all sworn to the facts necessary to establish that the will is valid.
But what is required if the original will is lost? First the application for probate requires additional information including: the reason the will cannot be produced; the contents of the will; the name and address, whether the person is an adult or minor, and the relationship to the person making the will of each person who receives something in the will and each person who would inherit it as a heir if there was no will.
There are also additional requirements of notice. Ordinarily all that is required if posting a citation at the courthouse. If the original will is lost then notice by personal service must be given to the heirs if their addresses are known and they are residents of Texas, otherwise notice is by publication.
Then there are additional requirements of proof in court. In addition to the normal testimony you must offer proof of the reason you cannot produce the original will and evidence of the contents of the will. Some Judges will require you to produce one of the witnesses who signed the will or witnesses of the decedent’s handwriting and signature.
The lesson is don’t lose the original.
Robert is an Elder Law, Estate Planning, Guardianship and Medicaid Attorney at Hammerle Finley Law Firm. Hammerle Finley Law Firm…Give us a call. We can help.
Call Hammerle Finley Law Firm at 972-784-0293 for help. The information contained in this article is general information only and does not constitute legal advice.