Detailed Answer
This article explains how Texas law treats wills that are lost or destroyed, what presumptions may apply, what evidence a probate court will require, and practical steps to take if you discover a missing or damaged will. This is a plain-language FAQ designed for readers with no legal background.
How Texas views a missing or destroyed will
Under Texas law, a valid will can be revoked in two common ways: a clear act of physical destruction by the testator with the intent to revoke, or by making a later valid will or codicil that revokes the earlier one. If the will cannot be found after the testator dies, courts examine the surrounding facts to decide whether the will was revoked or simply lost or destroyed without intent to revoke.
Tennessee and many other states follow similar rules, but for Texas statutes and rules that govern execution and probate of wills see the Texas Estates Code. Relevant provisions on will execution and probate can be found in the Texas Estates Code chapters that govern formal execution and probate procedures. For a text of the Texas Estates Code see https://statutes.capitol.texas.gov/Docs/ES/htm/ES.251.htm and for probate of lost or destroyed writings see https://statutes.capitol.texas.gov/Docs/ES/htm/ES.256.htm
Presumption that a will was revoked by destruction
If the decedent was last known to have had the original will in their possession and the original cannot be located after death, Texas law allows the probate court to presume the testator revoked the will by destroying it with intent to revoke. That presumption is rebuttable. The court will consider testimony and other evidence to determine whether the disappearance reflects revocation or mere loss.
Probating a lost or destroyed will in Texas
If the original will is unavailable because it was lost or destroyed, Texas probate law allows the court to admit a copy or other secondary evidence of the will only if the proponent proves two things to the court:
- That the will was validly executed when it was made, and
- That the will was not revoked.
To meet these requirements the court relies on evidence such as testimony from the attesting witnesses who saw the testator sign the will, the testator s signature on a copy, clear and convincing evidence about execution, and other corroborating documents like a photocopy or electronic copy of the will and drafts, or testimony about the testator s statements indicating the will s continued validity.
The burden on the proponent is higher when the original is missing because courts must be confident the copy truly reflects the testator s final wishes and that the will still governed at death.
Types of evidence courts consider
- Testimony from attesting witnesses who observed the signing or who can identify the testator s signature on a copy
- Affidavits from people who saw or handled the original will and can explain when it was last seen
- Photocopies, scans, or electronic copies of the will, together with testimony about authenticity and completeness
- Correspondence or records showing the testator referenced the will after the alleged destruction or disappearance
- Evidence that a later valid will was not executed
Common court outcomes
- If the proponent proves the will was valid and not revoked, the court may admit a copy and probate it as the decedent s last will.
- If the court finds the will was revoked (for example, evidence shows the decedent ripped the will in half and said I revoke it), the will will not be admitted and the estate will pass under a later will or under intestacy rules.
- If evidence is unclear, litigation may follow and the probate court may appoint an attorney ad litem or require additional proof before admitting any document.
Practical steps to take if a will is missing or destroyed
If you are handling an estate and discover the original will is missing or damaged, follow these steps to preserve rights and evidence:
- Do not discard any copies, drafts, or electronic files. Preserve every version you can find.
- Document where and when the will was last seen and who last had custody.
- Locate and preserve electronic evidence such as emails, cloud storage accounts, or device backups that might contain the will or related communications.
- Find and interview the attesting witnesses as soon as possible and ask them to provide a written statement or affidavit about the execution and last known condition of the will.
- Secure the decedent s papers and property and do not alter the scene where the will was kept; the court may consider spoliation of evidence.
- Contact a probate attorney promptly to evaluate whether to file an application for probate of a lost or destroyed will and to prepare the necessary evidence and witness affidavits.
Time limits and procedural notes
Probate rules and timelines vary by county and by the type of probate proceeding. Prompt action matters. If you wait too long to start a probate action or to collect evidence, key witnesses memories may fade and documents may be lost. A lawyer can advise about filing an application for probate, required affidavits, and any hearings the court will set.
Hypothetical example
Suppose Alice executed a valid handwritten will in 2018. In 2024 she died. Family members cannot find the original; they locate a photocopy on her computer and two attesting witnesses willing to testify that they signed and saw her sign the 2018 will. The probate court will review the witnesses testimony, the photocopy, and any other evidence to decide whether the 2018 will was valid and not revoked. If the court finds the evidence persuasive, it may admit the photocopy and distribute Alice s estate according to its terms. If the court concludes Alice destroyed the original with intent to revoke, or that the evidence is insufficient, the will will be denied probate and the estate will pass under a later will or intestacy.
Disclaimer: This is general information about Texas law and not legal advice. Every case turns on its facts. For advice about a specific situation consult a licensed Texas probate attorney.
Helpful Hints
- Start searching immediately for any hard copy or digital versions of the will.
- Preserve and make copies of all drafts, emails, and backups that may show the testator s intent.
- Locate and get written statements from attesting witnesses as soon as possible.
- If you suspect destruction with intent to revoke, collect contemporaneous statements, photographs, or testimony showing the testator s actions and statements.
- Do not attempt to reconstruct the will by making new documents; courts generally require proof that a document existed and was valid before death.
- Hire a probate attorney with experience in contested probate and lost-will cases to prepare evidence and represent the estate in court.