Disclaimer: This article is for educational purposes and does not constitute legal advice. Consult a qualified attorney for guidance on your situation.
Detailed Answer
In Texas probate, you must find and authenticate the original will and any codicils before filing a probate application. Under Texas law, these documents qualify as “testamentary instruments.” Follow these steps to locate originals and verify their validity.
1. Search Common Repositories
Begin by checking places where testators often store important papers. Review home safes, personal files, and bank safe deposit boxes. Many people also leave wills with their attorney or financial advisor. Under Texas Estates Code §256.154, a testator may deposit a will for safekeeping with the district clerk (Tex. Est. Code §256.154).
2. Check District Clerk Records
Texas allows voluntary deposit of wills in the district clerk’s office of the testator’s county of residence. Contact the district clerk’s office to request a search. If the clerk holds the original, they can issue a certificate of deposit under Tex. Est. Code §256.051 (Tex. Est. Code §256.051), which you attach to your probate filing.
3. Review Authentication Requirements
To meet Texas’s formalities, the will must bear the testator’s signature and two credible witness signatures. A self-proving affidavit, signed by the testator and witnesses before a notary, streamlines probate by waiving live witness testimony. See Tex. Est. Code §251.052 (Tex. Est. Code §251.052).
4. Locate and Review Codicils
Codicils amend or clarify provisions in the original will. They must follow the same signing and witnessing rules. Search the same locations for separate codicil documents. Always read codicils alongside the original will to understand the current testamentary plan.
5. Verify Chain of Custody
Establish authenticity by obtaining certificates or affidavits showing custody history. Clerk certificates, safe deposit box logs, or attorney retention letters document where the original was held and when it was released.
6. Follow Probate Filing Rules
Texas Rule of Civil Procedure 76 governs probate procedures. When you file the application for probate, include the original will and codicils (or a certified copy and certificate of deposit). The court clerk will retain the originals as part of the official probate record.
Helpful Hints
- Contact any attorney or law firm that drafted estate planning documents.
- Ask family members if they know of hidden safes or safe deposit box numbers.
- Request a formal search at the district clerk’s office in the decedent’s last county of residence.
- Ensure self-proving affidavits are correctly executed before the testator’s death.
- Track all testamentary instruments, including codicils and schedules like property lists.
- Use a probate process server to deliver originals directly to the court clerk.