Short summary: In Texas, losing or damaging the original will while it is being mailed to the probate clerk does not automatically invalidate the testator’s wishes. Texas law provides ways to admit a lost or destroyed will (or a copy of it) to probate if you can prove the will’s contents and that the original cannot be produced for a legitimate reason. Acting quickly, documenting the loss, and gathering witness statements are important first steps.

How Texas law treats a will when the original cannot be produced

Texas permits probate courts to admit a will even when the original document cannot be produced, as long as the person offering the will proves two things:

1. the will was validly executed (the testator signed it and required formalities were followed); and
2. the original cannot be produced because it was lost or destroyed (and it was not revoked by the testator).

To meet those requirements you generally rely on:

• a properly attested copy or draft of the will showing the testator’s signature,
• affidavits or testimony from subscribing witnesses (people who signed the will) that the will was duly executed and that the signature is the testator’s, and
• evidence explaining why the original cannot be produced (for example, postal or courier records, tracking information, or credible testimony describing the mailing and loss).

Common scenarios and what the court will look for

Below are typical factual paths and how a Texas probate court evaluates them:

1) The will was mailed to the clerk and the envelope never arrived or arrived damaged

The court will want proof the testator executed the will and that the original was in existence after execution. You should obtain:

• postal/courier tracking records or a declared lost-mail report from the carrier;
• the copy of the will you or the attorney retained;
• affidavits from the witnesses who saw the testator sign the will, or a self-proving affidavit (if one was attached when the will was made); and
• testimony or affidavit showing the original was placed in the mail and was not returned to or revoked by the testator.

2) The will was damaged in transit

If the original survived but the signature or material portions are obliterated, the court will still consider whether the evidence proves the testator’s intent and the required formalities. Photocopies, attesting witness testimony, and any prior drafts (or attorney files) help prove content and execution.

3) A self‑proved will (with a notarized affidavit) is involved

A self‑proved will includes sworn affidavits by the witnesses and a notary certificate that prove due execution without live witness testimony. If a self‑proving affidavit exists, its contents help the court rely on the copy if the original cannot be produced. Keep in mind courts may still require evidence explaining the absence of the original.

What the petitioner (the person asking the court to admit the will) should file

Typical filings and proof include:

• A petition to admit the will to probate, stating the original cannot be produced and describing the circumstances of loss or damage;
• A copy of the will (photocopy, draft, or an attorney’s file copy) attached to the petition;
• Affidavits from subscribing witnesses or a self‑proving affidavit, if available, confirming due execution;
• Supporting evidence such as postal/courier records, sworn statements about mailing, or records from the attorney who prepared the will; and
• Requests that the court declare the will valid and appoint a personal representative under the terms of the will.

If the court does not admit the copy

If the probate court finds insufficient proof of execution or cannot be satisfied that the original was not revoked, the court may refuse to admit the copy. When that happens, Texas intestacy rules apply and the deceased’s estate will be distributed as if there were no valid will, unless there is other admissible proof of the testator’s intent.

Relevant legal sources

Texas statutes and probate rules set out the procedures courts use to admit wills and to handle lost or destroyed originals. For statutory text, forms, and procedural rules, see the Texas statutes home and the Estates Code on the official Texas legislative website: https://statutes.capitol.texas.gov. For practical help and forms, the county probate clerk’s office and the TexasLawHelp.org probate pages explain local procedures and required filings.

When to consult a probate attorney

Because courts require precise proof and procedural steps, consult a probate attorney promptly if the original will is lost or damaged in transit. An attorney can:

• prepare the petition and affidavits,
• collect and preserve carrier records and witness statements,
• represent you at any hearing where the court evaluates the admissibility of the copy, and
• help protect the estate from delays or challenges that could cause assets to be misdistributed.

Important reminder: This article explains general Texas probate principles and common practices. It is not legal advice. Laws and local rules change. Contact a licensed Texas attorney for advice tailored to your situation.