Steps to Take
Lost or Destroyed Wills
When a will is lost or destroyed, it can throw a wrench into the probate process, complicating matters for executors and heirs. The original will serves as the primary document guiding the distribution of assets and the administration of the estate, and without it, things can become uncertain. However, there are legal steps that can be taken to resolve the situation. This article outlines what to do when you can’t find the original will, how to handle the process, and what options are available to ensure that the decedent’s wishes are still honored.
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At Integrity Estate Consultants, we pride ourselves on being the premier estate management and closure firm locally. Our expertise lies in assisting families daily, helping them navigate the complexities of their probate proceedings alongside their attorneys. Our goal is to help families return to normalcy by enabling administrators to close their estates as swiftly and cost-effectively as possible. We streamline the entire process, allowing administrators to focus on work, family, and other important matters, confident that their estate is being handled by a team of professionals.
Our knowledge is vast and far-reaching. We have helped hundreds of families and plan to assist thousands more by 2035. From the most complex estates to the simplest and even the downright messiest, we’ve seen it all and know our stuff.
Introduction
A will serves as one of the most important legal documents in estate planning, ensuring that a person’s wishes are honored after they pass away. However, what happens if the will is lost, destroyed, or simply can’t be located? Executors and family members often face a difficult situation when the original will is missing, but the process doesn’t necessarily come to a halt. While it can complicate matters, there are legal steps and strategies that can be employed to address the situation. This article outlines the steps to take if you can’t find the original will, how to handle the situation legally, and what options are available for executors and heirs.
1. Understanding the Importance of the Original Will
Before exploring the steps to take when a will is lost or destroyed, it’s important to understand why the original document is crucial. In most states, including Texas, the probate court requires the original will to open probate proceedings. A copy of the will, unless accompanied by evidence of the original’s loss, generally holds less weight in court. The decedent’s true intentions can only be carried out based on the formal execution of the original will, which provides proof of authenticity.
2. Steps to Take When the Original Will Is Missing
If you, as an executor or family member, find yourself in a situation where the original will cannot be located, there are several important steps to take:
A. Search for the Will
- Thorough Search of the Home and Safe: Begin by searching all areas where the decedent may have stored important documents, such as safes, filing cabinets, or desk drawers. It’s also advisable to check with any attorney or law firm that may have assisted in drafting the will. Some people store copies of their wills in law offices for safekeeping.
- Check with the Probate Court: In some instances, the decedent may have filed the will with the local probate court for safekeeping, especially if they had concerns about the document being lost or destroyed.
- Contact Family Members: Family members or friends may have knowledge of the location of the will or could even possess a copy of the document. It’s a good idea to ask around within the decedent’s circle.
B. Establish the Will’s Contents Through Other Documents
- Look for Previous Versions of the Will: If a newer version of the will can’t be found, older versions may still offer insight into the decedent’s wishes. These earlier drafts can sometimes serve as evidence of the decedent’s intentions.
- Gather Financial Records: If the will is completely missing, financial records such as tax returns, bank statements, and property records may provide insight into the decedent’s assets and distribution preferences. These documents could help piece together a general idea of what the will may have outlined.
C. Declare the Will Lost in Court
- Petition the Probate Court: If you are unable to find the will after an extensive search, you may petition the probate court to open the probate process without the original will. This usually involves providing a sworn affidavit stating the will is lost or destroyed.
- Submit a Copy of the Will: In some cases, a copy of the will may be admitted into probate if it can be proven that the original document was lost or destroyed. The court may require evidence, such as testimony from witnesses who can attest to the decedent’s intentions.
D. Establish the Validity of the Will Through Witness Testimony
- Witness Testimony: If the original will cannot be found, witnesses who were present at the time of the will’s signing may be called to testify regarding its contents. These witnesses could include family members, friends, or attorneys who were involved in the execution of the will.
- Affidavits from Witnesses: If no one is available to testify in person, sworn affidavits from those who can verify the will’s contents may be used. The more corroborating evidence that exists, the stronger the case will be for the will’s validity.
3. What Happens if the Will Is Determined to Be Destroyed?
If the court determines that the will was intentionally destroyed, the situation becomes more complicated. Under Texas law, when a decedent destroys their own will, it’s presumed they intended to revoke it, unless there is evidence to the contrary. If the decedent intentionally destroyed the will, the estate will likely be administered as though no valid will exists, meaning the estate will pass through Texas’ intestate laws.
- Reconstructing the Will: In some cases, evidence of the decedent’s intentions, such as prior drafts, email correspondence, or notes outlining their wishes, may allow the court to reconstruct a new will. However, this can be a lengthy process and often requires the testimony of witnesses who were aware of the decedent’s intentions.
F.A.Q
If a will is lost or destroyed in Texas, the probate court may still accept a copy of the will if it can be proven that the original document is missing. However, if the will is presumed to have been intentionally destroyed, the estate will likely be treated as intestate, meaning the state’s laws of succession will determine how the estate is divided.
Yes, in some cases, a missing will can be reconstructed through witness testimony, evidence of the decedent’s intentions, or prior drafts of the document. However, this process can be lengthy and complex, requiring careful attention to detail and supporting evidence.
To prevent issues with a lost or destroyed will, store it in a secure location, such as a fireproof safe, and inform a trusted family member or attorney of its whereabouts. Additionally, consider keeping a digital copy of the will and working with a probate attorney for safekeeping.
4. Intestate Succession: When There Is No Valid Will
If the original will cannot be found and no valid copy exists, the estate will be administered according to Texas’ laws of intestate succession. This means the decedent’s estate will be distributed based on the state’s laws, which generally prioritize spouses, children, and other close relatives.
- The Role of the Court: The probate court will oversee the distribution of assets under intestate succession laws, and an administrator will be appointed to handle the estate if no valid will is found. This administrator is typically a close family member, such as a spouse or child, but other relatives may be considered depending on the circumstances.
- Potential for Disputes: Intestate succession can sometimes lead to disputes among family members who may not agree on the distribution of assets. If the decedent’s wishes were not clearly communicated, the family may be left to navigate these disagreements without the guidance of a formal will.
5. Preventing Future Issues with Lost or Destroyed Wills
To prevent situations where a will is lost or destroyed, individuals can take proactive steps to safeguard their documents:
- Storing Wills in a Safe Place: Individuals should store their will in a secure, fireproof safe or deposit box. It’s also wise to inform trusted family members or attorneys about its location.
- Using a Probate Attorney: Working with an attorney to store a will can help prevent it from being lost. Attorneys often keep copies of executed wills in a secure location for safekeeping.
- Creating Digital Copies: Some people choose to create digital copies of their will, ensuring that they have a backup in case the physical document is misplaced or destroyed.
Conclusion
The loss or destruction of a will can create significant complications during probate, but there are steps that can be taken to move forward. Executors and family members must conduct thorough searches, seek legal guidance, and present relevant evidence in court if necessary. While the process may be more time-consuming and complex, with the right legal strategy, the decedent’s wishes can still be honored, even if the original will is not available.
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DISCLAIMER
Integrity Estate Consultants, LLC asserts that we are not a licensed lawyer, and this article is intended solely for providing general guidance and information from our collaborative experience, and should not be considered as legal advice or a substitute for consulting with a qualified attorney. For any specific legal grievances related to personal probate cases, we strongly advise individuals to seek professional legal counsel and engage the services of a licensed attorney.