Is it possible to Probate a Copy of a Will?

It is not uncommon for the will of an elderly person to go missing in the later years of his or her life. Often there is a "downsizing" and multiple moves that occur in the last years of our lives. In the process, the original will is lost. The Texas Estates Code has special requirements for probating "a will not produced in court." Most often this means probating a copy of the will.

If the will was last seen in the possession of the testator (the person making a will) and the will cannot be located, then a presumption arises under Texas law that the testator must have revoked the will and chosen to have died intestate. Thus, persons who inherit the estate upon death would be the testator's heirs at law, i.e., those heirs who take under the state's applicable intestacy provisions.

The Constitution of the United States provides that a person cannot be deprived of life, liberty, or property without due process of law. Thus, before a Court can admit a copy of a will into probate, which would deprive the intestate heirs of proeprty (their presumed inheritance), the intestate heirs must receive due process. Due process usually means advance notice of the taking and an opportunity to be heard.

The Texas Estates Code and the probate courts recognize this principle. Before the Court will admit a copy of a will into probate, the Courts require that you describe the decedent's marital and family history so that the Court can determine the identity of the intestate heirs. The Courts also require that you list the names, addresses, and interests in the estate of each intestate heir. Finally, some Courts will appoint a second attorney called an "attorney ad litem" whose job it is to verify that all of the intestate heirs of the estate have been properly identified. Dallas County, Denton County, and Tarrant County often appoint an attorney ad litem when probating a copy of a will. Collin County will only do so on a case-by-case basis. Since the ad litems do not work for free, the person who is attempting to probate a copy of a will must pay a deposit of $600 and later the remainder of the fee once the case is complete. But wait, there is more.

The Texas Estates Code requires that the intestate heirs must each be served with a citation from the Court informing him or her that an application has been filed to probate a copy of a will. The citation must be personally served to the intestate heir by a sheriff, constable, or process server. Altnernatively, and most often, the intestate heir can sign a document wherein the heir informs the Court that the heir is aware of the attempt to probate a copy of the will, that the heir understands that the property would pass to the intestate heirs in the absense of the will, and that the heir agrees that the copy of the will should be admitted to probate. This document, called a waiver of citation, must be executed before a notary public.

The Texas Estates Code also requires that a person who has read the will or a copy of the will testifies that the copy being offered to the Court is an accurate depiction of the original. Most courts overlook this requirement if you have a photocopy of the will. Dallas County Probate Court No. Two, however, has recently been requiring that a person who read or is familiar with the contents of the original will (e.g. the drafting attorney or someone who read the original) testify in court. If your case ends up in Dallas P2, be prepared to meet this requirement.

Easy way to Probate a Copy of a Will. Sometimes probating a copy of a will is almost as easy as probating an original will. The client provides the Duran Firm a complete marital and family history for the decedent. The Duran Firm prepares the waiver of citation for its clients for free. The client then gets each intestate heir to sign the waiver before a notary. The documents are then filed with the Court. The client arranges for two disinterested witnesses to attend the hearing and provide testimony as to the decedent's marital and family history. If the Court is satisfied that all of the decedent's intestate heirs have been served with notice (or waived notice), the the Court may admit a copy of a will into probate. Though not required, the Court will most often admit a copy of a will into probate when all of the intestate heirs would receive the exact same inheritance with or without a will and everyone is in agreement with probating the copy of the Will.

Hard Way to Probate a Copy of a Will. Probating a copy of a will can also be very difficult. There are cases where the client does not know the decedent's complete marital and family history. Furthermore, the Court is reluctant to admit a copy of a will into probate when: 1) an intestate heir refuses to consent to the admission of the copy into probate or actively opposes it; 2) when an intestate heir who would "lose" under the copy is a minor or an incapacitated person; 3) when an intestate heir cannot be identified or located. As an additional safeguard, the Court may appoint a second attorney ad litem for the missing, unidentified, minor or incapacitated heir. Thus, it is important to locate and serve all of the intestate heirs in order to avoid paying an attorney to fight you in court.

The Duran Firm also has different policies when probating a copy of a will. If your case is similar to the "easy" probate described two paragraphs above, then the Duran Firm can probate a copy of the will for an additional fixed fee of $500. If your case is similar to the "hard" probate described in the preceding paragraph, then the Duran Firm will charge you on an hourly fee basis. Furthermore, the Court will often appoint an Attorney Ad Litem to confirm the marital and family history. The Court will require a deposit of $600 for the Attorney Ad Litem. For more information on rates, see the foregoing page for the Duran Firm's Billing Procedures and Rates for Hourly Fee Cases

Thus, it is possible to probate a copy of a will. The circumstances of your case will dictate whether it is likely that the Court will admit the copy of the will into probate or proceed to determine the intestate heirs. Please call me to discuss your case in detail to determine what you are up against.