I LOST MY MOM’S ORIGINAL WILL BUT I HAVE A COPY

We’re all familiar with TV dramas and movies where wills are “read” and inevitably someone is upset and challenges the validity of the document.

This can certainly happen in “real life” probate court while trying to fulfill a decedent’s will, but if a will — also known as a last will and testament — is drafted, witnessed, and safeguarded properly, it should stand up in court.

But what if the original will is lost? Can a photocopy serve the same purpose? 

This obviously complicates the probate proceedings, but if certain requirements are met in the way of testimony and proof, the copy may be accepted.

For any issues involving wills in or around Corpus Christi or throughout South Texas, contact my firm for help. I focus my practice on estates, wills, and probate issues. I have helped countless others like you who faced issues with contested wills and probate court snags. I will consult with you, answer your questions, and help you arrive at the optimal resolution to your situation, whether drafting a will or seeing it through the probate process.

TYPES OF WILLS IN TEXAS

Two types of wills are recognized in Texas: The attested (or formal) will, and the holographic will.

An attested will is written out, signed, and then witnessed and signed by two other individuals who are at least 14 years of age. A holographic will is one that is composed in one’s own handwriting and signed just by the testator. 

An attested will is generally the most effective and least challengeable. For a holographic will to be accepted in court, someone must certify the authenticity of the handwriting, even if it comes down to hiring a handwriting expert.

You can also draft your “self-serving” will in Texas by having it notarized. A self-serving will can be entered into probate without the court having to contact the two witnesses for verification.

A will may seem simple to execute but can present multiple problems in probate court. It’s advisable to seek the advice and counsel of an experienced attorney in creating and maintaining your will.

THE CONTENTS AND
IMPORTANCE OF A WILL

A will essentially divides someone’s property upon their death. Assets held jointly, such as home and other property (including bank accounts), normally will pass to the joint holder (usually a spouse) without a will or going through probate. Beneficiaries named on insurance policies and retirement savings also avoid probate. The will must deal with everything else, including family heirlooms such as diaries and cherished photographs. Nothing should be left to be haggled over.

The will needs to name an executor, or personal representative, who will oversee the execution of the will while it goes through probate. If there are minor children, the will can also designate a guardian.

If you die intestate — meaning you don’t have a will — the probate court will decide the division of non-joint assets, name an executor, and even appoint a guardian for minor children. You likely don’t want a court deciding the fate of your family and loved ones.

A will is important enough that it should be put away in a safe place and its whereabouts shared with at least the named executor and spouse. Sometimes the will (or a copy of it) is left in the custody of the attorney who helped create it. Safeguarding the will is important to avoid situations like the common TV scenario mentioned in the opening. What happens if the original is lost and only a copy is available?

PROBATE WITHOUT AN ORIGINAL WILL

The first thing to remember is that the court will presume that the original will was either revoked or destroyed by its testator. That leaves the burden of proof on the person presenting the copy to verify its authenticity. If you can prove the original copy was destroyed, say, in a fire, that presents a somewhat less complicated situation, but if you show up saying you can’t find the original, you’re going to need to convince the court that the copy is indeed the same as the original will and that no revocation took place.

How do you do this? Texas Estates Code Section 256.156(a) states: “A will that cannot be produced in court must be proved in the same manner as provided in Section 256.153 for an attested will or Section 256.154 for a holographic will, as applicable. The same amount and character of testimony is required to prove the will not produced in court as is required to prove a will produced in court.”

What those referenced sections basically require is “the sworn testimony of one or more of the witnesses by written or oral deposition.” Section 256.156 also states:

In addition to the proof required by Subsection (a):

(1)  the cause of the nonproduction of a will not produced in court must be proved, which must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced; and

(2)  the contents of the will must be substantially proved by the testimony of a credible witness who has read either the original or a copy of the will, has heard the will read, or can identify a copy of the will.

In other words, you must prove that the original will was actually lost and not revoked or destroyed, and also find a witness or two to verify that the contents of the copy are the same as on the original. Depending on the circumstances, getting a court to accept a copy of a will can present a high hurdle.

WORK WITH AN EXPERIENCED
ESTATE PLANNING ATTORNEY

The hassle of proving that a copy of a lost will is valid can be largely avoided — as can numerous other unforeseen difficulties — if you take the proper care and precautions when executing the document in the first place. That’s where the guidance and help of an attorney experienced in wills and probate can prove invaluable.

I’ve spent the past 30 years helping people navigate their way through all aspects of estate planning, and certainly in drafting and safeguarding wills, as well as in helping people with the whole probate process, which can prove complicated and time-consuming, to say nothing about being emotionally draining.

If you’re in Corpus Christi, South Texas, or anywhere throughout the Coastal Bend area, call me, attorney Russell Manning, for an initial consultation.