This article is second in a series on what to consider and steps to take when planning for preservation of your estate and affairs or those of a loved one. Here is article one, What Happens When You Die — With a Valid Will.
In the previous installment of this series, we talked about the process of probating a valid will. Probating a will that includes all of the code-required language is the easiest version of will to take through the probate process. However, even if a Decedent takes the time to draft a valid will, there is no guarantee it will be accessible for probate. The Decedent might have hidden it in a secure location that she did not share with any of her family. Or, the Decedent may have accidentally misplaced the document, and no one knew it was missing until the time for probate. So, what happens if the Decedent made a valid will, but no one can find the original? Although, it is slower and involves more steps than the probate of a valid, original will, with the help of an attorney, it is possible to probate your loved one’s estate with a copy of the will.
Ensuring Proper Jurisdiction
After a will is drafted, the Decedent is often given the original document to keep safe. Though keeping the original will may sound like a task for the attorneys or the court, many authorities recommend that the Decedent to keep her own will. Ideally, the Decedent will also share the location of the original will with trusted family member(s) or friend(s). By keeping the original will in a secure location, the Decedent can ensure that her probate will be brought to a court of proper jurisdiction.
A Valid Will is Valid Everywhere
A valid will is valid everywhere, if it is drafted in accordance with the laws governing those who drafted it. However, a county probate court only has jurisdiction over a Decedent’s estate if the Decedent was living and had a fixed place of residence in that county on his or her date of death. For example: if the Decedent drafts the will in New York City, but then moves to Dallas, Texas and lives there until death, the will must be probated in a Dallas County Probate Court. If the lawyer who drafted the will still held the original, it would be difficult to make contact regarding Decedent’s death and need for probate, and it exposes the will to risk (as it may be lost in transit).
Where to Look for a Missing Will
If you are taking lead on the probate process and the Decedent did not share the location of the original will with you, the first step (if possible) is to communicate with your family and any of the Decedent’s close friends or caretakers. There are a few reliable places to check before pursuing other probate paths.
Search the Decedent’s home from top to bottom. Often, people find an original will stored with other important documents, like birth certificates or marriage records. If nothing yields results, however, check if she had a safe deposit box. As a secure place, many folks store wills in safe deposit boxes, but may not tell their future executor or may not have given the executor keys/authority to open the box. If you can’t find the will and a safe deposit box exists, you’ll want to check. To do so, you will need to file a Motion to Enter Safe Deposit Box.
A Motion to Enter Safe Deposit Box gives you limited authority per court order to open a Decedent’s safe deposit box in order to 1) look for a will, 2) look for an insurance policy, or 3) look for a deed to a burial plot. Once the court approves, you as the Executor (or your lawyer, on your behalf), you can communicate with the bank to schedule a visit to examine the safe deposit box. Prior to the visit, make sure that you have the safe deposit box key, if there is one. The court order permits the bank to open the safe deposit box via drill, but doing so is an additional hassle (and an additional fee).
Probating a Copy of the Will
The probate of a copy of a will is governed by Section 256.156 of the Texas Estates Code. The main differences between the probate of a copy and the probate of an original will have to do with the hearing that comes after the application for probate is filed.
Once you’ve submitted an Application to Probate a Copy of Will (accompanied by a copy of the death certificate and a copy of the Decedent’s will) a prove up hearing will be set. You must ensure that one or more of the subscribing witnesses to the will attend the hearing, as the sworn testimony of at least one subscribing witness is essential to proving the validity of a will.
In addition to the testimony of the subscribing witness(es), you must also show the court: 1) proof of the reason the will cannot, by any reasonable diligence, be produced in court1 and 2) testimony from a credible witness who can substantially prove the contents of the will. A credible witness must have either read the original will or a copy of the will, heard the will read previously, or have the ability to identify a copy of the original will.
Determination of Heirship
When probating a copy of a will, some jurisdictions will require an additional step called Determination of Heirship. Once the Application for Determination of Heirship is submitted to the court, the court will order the appointment of an Attorney Ad Litem. The Attorney Ad Litem is tasked with investigating the family tree and identifying every potential heir of the Decedent. If the copy of the will is declared invalid or cannot be proved up, the heirs shall inherit as if the Decedent was intestate (i.e., died without a will).2
As always, however, the local rules reign supreme; not every county requires a Determination of Heirship. Once heirship has been determined, you are free to resume the probate process.
While probating a copy of a will doubtlessly presents its own complications, the assistance of a qualified attorney can make the process manageable. It is not always an easy conversation to have, but retaining an attorney to draft a valid will while you are of sound mind and having open communication with your loved ones about the location of the will enables an easier transition for all involved.
- You can demonstrate to the court that you investigated all likely places the will may have been kept (including the Decedent’s home, any safe deposit boxes, or at the Decedent’s place of work) and have spoken with the Decedent’s close friends and family regarding the will’s location, yet were unable to find the original.
- More on intestate succession in our next installment, wherein we will discuss Probate Without a Will.
