Decatur Family Law and Probate Attorney

What happens if you can’t find the will?

On Behalf of | Jun 13, 2024 | probate administration

In Texas, probate is an integral part of settling a person’s estate after they have died. During probate, the person’s death is acknowledged and allows their assets to be distributed based on their estate plan. It is an important part of the process.

However, there are often issues that arise that can make it a complicated matter. Since the person’s will is a critical aspect of probate and their assets being distributed based on the estate plan’s contents, it is important that a will be produced. If it is not, there is a process that will be followed to settle their estate.

What if a will is not produced in court?

According to state law, if the will cannot be produced, it will need to be proved the same way as it would be if it was an attested will or a holographic will. An attested will is self-proved if the person writing it – the testator – signs it and there are two credible witnesses present to also sign it. Even if the attested will was not self-proved, it is still possible to admit it to probate. To do so, there must be a witness who will either testify or give an affidavit as to its validity.

Holographic wills are handwritten. There do not need to be witnesses present for it to be considered valid. It simply needs to be in the testator’s handwriting. It will be self-proved at the time of its signing or when the testator dies.

When the will is not produced, it is also necessary to show why the will was not produced and this must satisfy the court. There will need to be testimony from credible witnesses as to the validity of the will’s contents. They must have either read the original will, heard what it said or are able to identify the copy that has been produced.

Probate can still move forward without the will

People who are trying to settle a deceased loved one’s affairs and move forward with probate will feel inevitable fear and concern if they cannot find the original will. However, it is still possible to go forward with probate if the above conditions are met. Still, for these cases, it is imperative to be prepared by understanding the law and having advice.