How to Probate an Unwitnessed or Unnotarized Will in Texas

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

Detailed Answer

In Texas, a valid will generally requires the testator’s signature and two credible witnesses. Notarization is not mandatory. However, if a will lacks witnesses or notarization, you may still admit it to probate under two pathways:

1. Holographic Will

A holographic will is one that is entirely in the testator’s handwriting and signed by the testator. Texas Estates Code § 251.051 states that a handwritten and signed will does not require witnesses. To probate a holographic will:

1. File an application for probate in the county probate court where the testator lived at death.
2. Submit the original handwritten will and a certified copy of the death certificate.
3. Provide an affidavit from at least one person who can testify that the document is in the testator’s handwriting and was signed by them.
4. Serve notice on heirs and beneficiaries as required by Texas Estates Code § 308.001 (308.001).
5. Attend the probate hearing, where the court will determine validity and appoint an executor or personal representative.

2. Lost or Undelivered Will

If the will lacks witnesses and is not wholly handwritten, but you believe it is genuine and was properly executed, you may petition to probate a lost will under Texas Estates Code § 256.002. The court may admit a lost will if you prove:

• The testator executed the will.
• The will’s contents.
• Due execution of the will.

To pursue this option:

1. File a petition for probate of lost will.
2. Attach supporting evidence (witness affidavits, drafts, or credible testimony).
3. Serve formal notice on statutory heirs and beneficiaries.
4. Attend the hearing and present evidence to satisfy the court.

Once the court admits the will, it issues letters testamentary or letters of administration with will annexed. The appointed personal representative then distributes assets under the will’s terms and Texas Estates Code Chapter 307.

Helpful Hints

• Gather all versions of the will, drafts, and related correspondence.
• Obtain a certified copy of the decedent’s death certificate early.
• Secure affidavits from anyone with firsthand knowledge of the will’s execution or handwriting.
• Check filing fees and local court rules for probate procedures.
• Consider consulting a probate attorney to navigate complex evidentiary requirements and court filings.