Legal Question in Wills and Trusts in Texas
My mother recently passed away. Her attorney has a copy of her will, but the original cannot be found. My father died 10 years ago. My sister and I are the only heirs. While my sister and I are the only beneficiaries in the will, we don't like the terms of her will. Are we required to use the copy of the will to probate or can we go through the probate process as if my mother died without a will?
2 Answers from Attorneys
if the original will cannot be produced, there are other requirements that need to be met in order to probate the copy if you cannot meet those requirements then you follow the laws of intestacy. Was the will revoked?
Nile Copeland
Interesting question. There is no requirement that Wills ever be probated. I'd be curious to know what provisions of the Will you and your sister find unfavorable, if the result would be the same whether you probate the Will or not. That said, Section 75 of the Probate Code tells us that a person in possession of a Will is supposed to at least deposit a Will with the County Clerk. This does not mean that you must then take the steps to probate it. Obviously, the statute is designed to avoid the suppression of Wills.
In your case, all you have is a photocopy, and no proof (from your question) that your mother did not revoke the document before her death. Interestingly enough, in the annotated version of Section 75 of the Code, there appears a case that is often cited as authority for the notion that family members can agree to not probate a Will in an effort to avoid probate litigation.
Before you and your sister decide to start down the path of formalizing any agreement (which you should) or probating your mother's estate as if she died without a Will (which might make sense,) you really should visit with a probate attorney to develop a bit more of this story.
Brian Thomas
Law Office of J. Brian Thomas
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
