Sample Case With Copy of a Will:
Simplified case below to illustrate the general rules.
Your brother passes away and leaves all of his assets to you and your sister in equal shares under his Will. Assume the Will is valid except for the fact that it is a copy
Your brother died single without any children.
Your brother’s major assets are a checking account and his house.
You are named as Executor (signer) for your brother’s estate under the copy of his Will. You are unable to locate his original Will.
You talk to both the bank and a title company and show them the copy of the Will and Death Certificate.
The bank and title company tell you that you cannot sign for your brother’s assets until you go through the probate court process and get a judge to sign an order declaring the copy of the Will is valid and appoints you as Executor (signer) for your brother’s estate.
What do you need to do?
Are Copies of Wills Valid in Texas?
Standard lawyer answer: it depends. See below.
Presumption of Revocation If Original Will is Lost
The general rule under the Texas Estates Code is that if you cannot find your brother’s original Will (the one that he personally signed and not a photocopy) then Texas presumes that your brother destroyed the Will with the intent to revoke it.
Typically you can overcome this presumption by providing testimony that you searched your brother’s papers top to bottom and believe that he misplaced his Will with no intention to revoke it.
Brother’s Intestate Heirs Have Right to Official Notice (Citation) In Case Will Is a Fake
The next requirement for probating a copy of a Will requires an independent witness and an independent third-party attorney, often called an attorney ad litem.
The probate court is an independent party and has another issue – what if the copy of the Will is a fake?
From the probate court’s point of view, they do not know us from Cain and we could just be riff-raff from off the street.
Result: we are required to provide official notice/citation (or get a signed and notarized waiver of notice) from each person who would inherit from your brother if he had died WITHOUT a Will.
You will need to have a witness who would NOT inherit from your brother under the Texas default intestacy laws who can testify to your brother’s family history such as:
1. Did he die single or married?
2. Did he have any kids?
3. If he did not have any kids, who are his siblings?
4. How does the witness know your brother’s family history? Friend, neighbor, family?
However, because we are the ones producing the witness, the probate court cannot simply take our word for it.
We will be required to pay for a third party attorney (often called an attorney ad litem) who will check the public records to verify the family history we have provided in our court pleadings and who will interview our family history witness.
Moral of the Story?
Make sure your next of kin can find your ORIGINAL Will, meaning, the Will that you actually signed and not a copy of the Will BEFORE they die.
In some cases the family can remember being shown the original Will but have no idea where it has been hidden.
Checklist if Attempting to Probate a Copy of a Will?
1. Copy of the Will
2. Death Certificate
3. SSN of Decedent, typically on Death Certificate
4. Driver’s License number of Decedent
5. SSN of person applying to be Executor
6. Driver’s license of person applying to be Executor
7. Family history witness who would not inherit from Decedent if he died without a Will AND who has basis for knowing the family history
8. Contact information for each person who would inherit from Decedent if he died without a Will – typically try to get Waivers of Citation from each of them instead of getting them served citation
9. Cash on hand to pay court filing fees and deposit for independent third party attorney ad litem.
10. List of Decedent’s assets for inventory filing