Illustration by Chris Elam
You’ve searched everywhere –the desk, file cabinet, footlocker, safe, attic, shed, and safe-deposit box at the bank. But you can’t find the original will.
You call the attorney who prepared it. No luck. No original can be found anywhere.
Or maybe you can’t tell whether the document you have is the original or a copy.
Can you still probate the will?
The good news is: Yes! You can probate a copy of the will.
The Steps to Probate a Copy of the Will
To probate a copy of the will in the state of Texas, first your application must include the names and addresses of both the beneficiaries and the heirs at law. While the beneficiary is anyone who receives something under the will, the heirs at law are determined by the laws of the state. The heirs might or might not be named in the will. If you are unsure of the testator’s heirs, consult your state’s probate code. After you have completed the application, you can give the application to an attorney to file with the court.
Second, the testator’s heirs need to be personally served with citation. This step usually includes a copy of the will and the filed application. Paying a process server or the sheriff or constable to serve citation can be expensive. You can avoid this expense by getting the heirs to sign a waiver of citation.
If there are heirs who don’t live in Texas or heirs for whom you don’t have an address, you can serve citation by publication.
The best approach is to get all the heirs to sign a waiver of citation. But if there’s any chance the heirs are going to oppose probate of the copy, it might be cheaper to do citation by publication.
After you have completed the necessary requirements, the next step is the hearing.
The Prove-up Hearing
Explanation
At the prove-up hearing, you will need to explain why the original will cannot be produced. Judges are generally lenient on this point if no one is contesting the will.
What the judge wants to know is that you looked for the original, couldn’t find it, and there’s no reason to believe that the testator, the person who wrote and executed the will, destroyed the original with an intention to revoke it.
When I was judge of Dallas County Probate Court #2, I heard everything from “The original was destroyed in a fire” to “It got lost while I was packing everything up to work for the President.”
You will also need to present evidence about the contents of the will. That’s not a problem when you have a true and correct copy of the original will.
The Testimony
Finally, you will need to offer testimony about the execution of the will. Typically, a will is accompanied by a “self-proving affidavit,” an affidavit that proves the testator’s witnesses have sworn under oath that they have signed and witnessed the will. The self-proving affidavit substitutes for live testimony about the manner in which the will was signed.
But wait, can a copy of a will be self-proved?
Self-proving Affidavit
When the original will is missing, the original self-proving affidavit is missing too.
Some courts let you offer evidence that your copy of the self-proving affidavit is a true and correct copy and that no one is questioning its authenticity. In that case, no live testimony concerning the execution of the will is required.
Judges who let you use a copy of a self-proving affidavit rely on Texas Rule of Evidence 1003 and case law applying that rule.[1]
Other probate judges make you bring a witness with personal knowledge of the facts and circumstances surrounding the execution of the will. These witnesses are commonly the subscribing witnesses who were in attendance when the original will was signed or the notary.
If the hearing is successful, the judge signs an Order admitting the copy to probate.
Conclusion
Every state has different rules, every court has different requirements, and every judge has different preferences. When seeking to probate a copy of a will, it is best to hire experienced counsel who understand the special rules that apply to copies to avoid surprises at the prove-up hearing.
Partner Chris Wilmoth focuses on probate, trust, and guardianship litigation. He also conducts mediations and accepts appointments as a special judge, trustee, administrator, and guardian of the estate. In recent years, Mr. Wilmoth has acted as lead counsel in will contests, trust modifications, contested guardianships, and breach of fiduciary duty lawsuits. He supervises the firm’s handling of numerous uncontested probate and guardianship proceedings.
[1] See, e.g.Vince Poscente Int’l, Inc. v. Compass Bank, 460 S.W.3d 211, 216-17 (Texas. App. – Dallas 2015) (refusing to apply a local rule that requires “good cause” for admission of a copy).