Can you probate a lost will?

Probating a Will is the legal process of proving the validity of a Will after someone has passed away. The process can be very simple to very difficult. If you have met with a lawyer and created a plan for your estate then the process can be quite simple. Estate planning is encouraged to have your affairs in order in the event of an unexpected passing. On the other hand, if you pass away without a Will, the process can become much more complicated since there are no documents directing your last wishes.

But what happens if a Will is lost? Life happens and a Will can become lost even though one was written initially. Though people may know the person who passed away’s last wishes, courts require a demanding process to accept anything other than the original Will to overcome the presumption the deceased individual had no will or the Will was revoked.

When a presumption of revocation arises due to a lost Will, the proponent then must prove that the Will was valid, and in doing so, override the presumption. This leads down a rabbit hole of requirements such as having the contents of the Will proven by a credible witness who has heard, read, or can identify a copy of the original Will, and a good reason for the will not being produced in court according to Section 256.156 of the Texas Estates Code. Moreover, you must first go through the regular requirements for what a valid written Will would go through if it was produced, meaning not lost, and was not presumed to be revoked. This can become even messier if other problems arise such as another party disputing the validity of the Will which you are claiming.

If the criteria mentioned above are met and proven, then the Court can admit a lost Will into probate. But, if you fail to meet one or more of the requirements, the Will may not be admitted into probate. In this case the decedent (the person who passed away) is presumed to have died without a Will and the estate may not be distributed in the way they had wished, even though they died with a Will drafted.

Because this can be such a difficult process, it is encouraged that you seek an attorney who is skilled in probate law to help represent and guide you through the process of probating a lost Will. If you find yourself in a similar position where a loved one’s Will has been misplaced or destroyed, feel free to contact Evan Lange Law, P.L.L.C. at (713) 909-4558, a Sugar Land probate lawyer, to discuss whether the Firm may be able to help.