How to probate a copy of a Will
It is often necessary to transfer title of assets of the deceased or to pay any debts due by the deceased through the process (called probate) of getting approval of the court that the Will of the deceased was not only valid under the laws of the state (laws vary by state), but it was in fact the Last Will and Testament of the deceased.
Copy = Presumption of Destruction.
Under Texas law, if you do not have the original (the Will signed by the deceased) it is presumed that the Will was destroyed. A photocopy of the Will can be probated if the judge believes you have provided the required proof.
6 Steps to Probate a Photocopy of the Will (in addition to the other general requirements)
Step 1: The application to approve the copy of the Will must indicate if the Will was lost, destroyed or outside Texas and the reason why the original Will cannot be produced.
For example, was the Will destroyed by a fire? Have you diligently looked anywhere the Will could have been kept (safe, former lawyer’s office, lock box, etc.)? There must not be a reason why the deceased destroyed the Will.
Step 2: The application must state the contents of the Will – but the photocopy of the Will should be sufficient.
Step 3: The application must state the name, address and relationship to the deceased of anyone named as a beneficiaryunder the Will in addition to anyone who would be an heir under Texas laws of intestacy (if there was no Will).
Step 4: The heirs of the deceased must be served with citation although they can sign a waiver of citation that they received a copy of the application for probate as well as a copy of the Will in which probate is sought.
Step 5: Court hearing proving steps 1-4, but you may also need the testimony of the witnesses named in the Will. Most Wills have a “self-proving affidavit” whereby testimony of the witnesses before the judge is not needed since the witnesses swear before a notary that the Will meets the formalities required under Texas law. However, since the original Will cannot be located, this requirement may vary upon the judge. The witness must not have any financial interest in the estate of the deceased. If a Will is old, this may be a difficult obstacle.
Step 6: If none of the witnesses are living or if the witnesses are members of the armed forces and beyond the court’s jurisdiction, the Will may be proved by someone who can identify the handwriting of one or both of the subscribing witnesses.
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