Reed: Can lost wills be probated?

Sandra W. Reed
Special to the Reporter

Annie’s widower father, Thomas, died on March 29, 2020. Thomas made a will in 2010, sending Annie a letter enclosing a copy of it. Thomas confided in the letter that the original will resided in a safe deposit box (SDB) with Frost Bank in Fort Worth. However, when Annie contacted the bank, she learned the SDB was closed in June of 2015 and its contents removed. Annie then searched without success through her father’s things at his home.

Sandra Reed

In the Will, Thomas named Annie as Independent Executrix and left his entire estate to her, stating he was purposely omitting his son, Benjamin, due to his drug addiction and history of repeated incarcerations.

Can Annie probate the copy of the will? Or will Thomas be considered to have died intestate because the original is lost? If the latter is the case, Annie’s brother, Benjamin will take one-half of the estate and likely shoot it into his arm.

Can a copy of a lost will be probated?

The good news is that Annie can probate the copy of the will. She files an application to probate just as she would if she had the original Will. However, her application must contain the additional requirements of Texas Estates Code, §256.054.

Additional requirements to probate lost wills

Annie’s application must state the reason the original will is lost and cannot be produced. She must state her relationship as daughter to Thomas. She must name all the devisees under the will, here herself only. Finally, she must name all those who would inherit as an heir in the absence of a will, that is, herself and her brother, Benjamin.

Annie should include in the application all the facts that show she has exercised due diligence to locate the original will and has been unsuccessful. In this case, she may want to produce the letter from her father stating where he had kept the will. She may include the information she obtained from the bank regarding Thomas’ closing of the safe deposit box. She can describe her search of Thomas’ home.

Assuming the probate judge finds that the will is otherwise valid, Annie should be able to avoid having to file an heirship.

Sandra W. Reed practices Elder Law in Somervell County, handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning.  She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at sreed@kbzlaw.com.