Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed attorney to discuss your specific situation.
Detailed Answer
When you uncover an original will decades after it was signed, Texas law provides a clear path to authenticate and probate it. The probate court must confirm the document’s validity, show the decedent did not revoke it, and ensure all statutory requirements are met. Follow these steps to guide you through the process under Texas law.
1. Confirm the Will’s Authenticity
First, ensure you have the original signed will. Texas Estates Code § 251.001 requires that a valid will be in writing, signed by the testator (or by another at the testator’s direction), and attested by two credible witnesses. If the original is missing, you may still prove a lost will under Texas Estates Code § 256.151.
2. Gather Witness Affidavits
Locate and obtain sworn affidavits from the attesting witnesses. Each witness should attest that they observed the testator sign the will and that the testator appeared of sound mind. These affidavits satisfy the “self-proving” requirement under Texas Estates Code § 251.103.
3. Establish Nonrevocation of the Will
You must prove the testator did not revoke the will by destroying it or executing a later one. If the original will is found intact, the court presumes no revocation. If the original is lost, you must show it was not revoked under § 256.152.
4. File an Application to Probate
Submit an application in the probate court of the county where the decedent resided at death. Texas Estates Code Chapter 256 governs admission of lost or unrevoked wills. The application must include:
- A copy of the will or a statement of its contents.
- Affidavits of attesting witnesses.
- Proof of death (e.g., death certificate).
- A list of heirs and beneficiaries.
5. Serve Notice and Attend the Hearing
After filing, you must notify interested parties—heirs at law and beneficiaries—of the probate hearing. Give notice per Texas Estates Code § 22.021. At the hearing, the court will review all evidence and determine whether to admit the will. If the court finds the execution valid, it will issue letters testamentary or letters of administration with will annexed.
6. Administer the Estate
Once the will is admitted, the appointed personal representative must inventory assets, pay debts and taxes, and distribute property according to the will’s terms. The process follows procedures in Texas Estates Code Chapters 305–365.
Helpful Hints
- Preserve the chain of custody for the original will to prevent claims of tampering.
- Interview and document witness memories promptly; over time recollections fade.
- If witnesses are deceased, consider handwriting experts or secondary evidence to prove execution.
- Obtain certified copies of death certificates and any prior probate records.
- Confirm no subsequent wills exist; search safe-deposit boxes and the county clerk’s records.
- Be mindful of deadlines: although Texas has no strict bar for probate of an old will, delay may complicate creditor claims and heir rights.
- Work with a probate attorney to navigate procedural requirements and court filings.