Detailed answer — how to confirm whether a will is the original under Texas law
When someone gives you a document they say is a deceased person’s will, the first practical and legal question is whether you actually have the original instrument. Under Texas law, an original will is normally required to probate without extra proof. If only a copy exists, the person seeking to probate it will usually need to prove why the original is unavailable and prove the copy’s authenticity. For statutory background on formal requirements for wills in Texas, see the Texas Estates Code, Chapter 251 (Wills): https://statutes.capitol.texas.gov/Docs/ES/htm/ES.251.htm. For rules about admitting wills to probate and filing when an original is missing, see the Estates Code probate provisions: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.256.htm.
Quick checklist: visible signs of an original will
Look first for physical indicia that suggest an original (not a photocopy):
- Signatures in ink. Originals usually contain ink signatures of the testator and of the required witnesses. Copies often show uniform greyscale toner/ink from a photocopier.
- Witness signatures. An attested will in Texas normally has the testator’s signature and two witness signatures. A holographic will will be entirely in the testator’s handwriting and signed by them. See Chapter 251 for differences: Texas Estates Code, Ch. 251.
- Notary or self‑proving affidavit attached. Many wills include a separate notarized “self‑proving” affidavit that the testator and witnesses signed before a notary. A self‑proving affidavit speeds probate because courts may accept the will without calling witnesses.
- Physical features: indentation/ink bleed, paper thickness, watermarks, signatures that have pressure indentations you can feel or see under raking light. Photocopies generally lack these tactile and optical cues.
- Page numbering and staple marks. Originals often show consistent page numbering, original staples or stitching, and corrections initialed in the margins that look hand‑made rather than machine printed.
How Texas law treats originals and copies
Texas courts prefer the original will. If you have the original, a person seeking probate should present that original to the probate court. If only a copy exists, Texas law allows a copy to be offered in some limited situations, but the proponent will usually need to prove by clear and convincing evidence that:
- The decedent validly executed the will (signature, witnesses, or holographic handwriting as appropriate under Chapter 251); and
- The original was lost, destroyed, or is otherwise not available and was not revoked by the decedent.
Proving those facts typically requires witness testimony, other contemporaneous documents, or admissible secondary evidence. Because the rules and the evidence standard can be technical, consult counsel before attempting to probate only a copy. See Texas Estates Code, Chapter 256 for probate procedures: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.256.htm.
Practical steps you should take right now
- Do not alter the document. Keep the pages together, in order, and do not erase, staple, or write on the paper.
- Photograph the document (high‑resolution) for your records, but retain the original in a secure place (lockbox/safe). Mark copies clearly as “copy” and do not represent a copy as the original.
- Ask the person who gave you the will where they found it and whether they know who else had custody. Document that chain of custody in writing (names, dates, locations, how the document was stored).
- Check for a self‑proving affidavit or notary block attached to the will. A properly notarized self‑proving affidavit can remove the need to subpoena witnesses for probate in many cases.
- Contact the county clerk in the county where the decedent lived to ask whether an original will was previously lodged or filed for safekeeping. Many counties maintain instructions or forms about wills and probate; county clerks may also tell you if someone already filed the original with the clerk.
- If you suspect forgery or tampering, do not try to prove it yourself. Contact a probate attorney and consider a forensic document examiner to analyze ink, handwriting, paper, and seals.
When a copy may be admitted (common scenarios)
Common situations where a copy is used:
- The original was lost or destroyed after the testator’s death (for example, destroyed in a fire) — courts will consider admitting a copy if there is clear and convincing proof of authenticity and nonrevocation.
- The original is being wrongfully withheld by someone else — the court may issue orders to recover the original or admit a copy if the custodian refuses to produce it.
- The will was recorded or there exists a certified copy filed earlier with a clerk or attorney — those records can help prove authenticity.
When to call a lawyer
Talk to a Texas probate attorney if any of the following apply:
- You only have a photocopy and the original cannot be located.
- You suspect the document is forged or altered.
- Multiple people claim to possess the original will or contest custody.
- You need to file for probate and want to know whether a self‑proving affidavit or witness testimony will be required.
A lawyer can explain local probate procedure, evaluate the strength of any copy of a will, and help preserve evidence (chain of custody) needed to admit a copy if necessary.
Helpful Hints
- Preserve the document’s condition. Put the will in an archival sleeve or plain envelope; avoid plastic coverings that can trap moisture.
- Document chain of custody: write down who handled the will, when they handled it, and what they did with it.
- Look for a notary stamp or raised seal on a self‑proving affidavit — it is a strong indicator of an original.
- Keep a dated scan and photos for reference, but always keep the original for probate unless advised otherwise by an attorney or the court.
- If you find an envelope or safe deposit box key, note that in records — access to the safe deposit box or related bank records can help prove where the original was stored.
- Do not confront holders of an original aggressively. If someone refuses to produce an original, a lawyer can request judicial process (subpoena or court order) to obtain it.
- If you intend to submit a copy for probate, gather supporting evidence (witness affidavits, prior drafts, correspondence, registration with an attorney, or prior filings) to show authenticity.
Disclaimer: This article is informational only and does not constitute legal advice. It explains general principles of Texas law for educational purposes. For advice specific to your situation, consult a licensed Texas probate attorney.