Probate is the legal process of proving the validity of a will. It is also commonly understood to refer to the legal process in which the estate of a decedent is administered.
The probate process usually starts by filing an Application for Probate with the court, along with an original Will. But what happens if the original Will cannot be found? Is it possible to probate a lost Will?
In Texas, when an original Will cannot be produced, the Testator is presumed to have revoked it. In other words, if all you have is a copy of the Will, Texas that the deceased person had no will at all.
However, the presumption is rebuttable.
Texas has a procedure for admitting a lost Will to probate. To admit an alleged lost Will to probate, in interested person must:
(1) Prove that the Will was valid.
(2) Establish why the Will cannot be produced, in a manner sufficient to overcome the presumption that the Testator revoked it.
(3) Substantially prove the contents of the Will, through the testimony of a credible witness who read the Will, heard the Will read, or can identify a copy of the Will.
So for example, suppose the Testator died as a result of his home being flooded, and you can show that his important documents were lost in the flood. Or perhaps the Testator died in a fire that burned down his house, along with everything in it. In such situations, there may be sufficient evidence to overcome the presumption the Testator revoked his Will.
A qualified probate attorney can help you determine how best to proceed.
