by Kristen Ishihara and Chris Parker with Ishihara & Parker Law Firm PLLC

Losing an original will can create significant challenges when it comes time to probate an estate. If you or a loved one only has a copy of a will, it's important to understand the legal hurdles and steps required to ensure the document is recognized in court.

The Importance of the Original Will

When a court refers to a "will," it means the original wet-signed document—not a duplicate, not a scanned copy, and not a notarized reproduction. Texas law requires the original will to be filed with the court within three days of submitting an application for probate. If the original cannot be found, a more complex legal process follows.

What Happens If the Will Is Lost?

A lost will is presumed by law to have been intentionally revoked by the testator (the person who created it). This presumption must be overcome by proving that the will was lost or destroyed without the testator’s intent to revoke it. This requires:

1. Providing Evidence of the Will’s Validity
   • A copy of the will must be presented.
   • Testimony from individuals familiar with the will may be required to confirm its authenticity and the testator’s intent.
2. Explaining Why the Original Is Missing
   • Common reasons include house fires, misplaced documents, moving homes, or medical events where paperwork was inadvertently discarded.
   • Courts require a credible explanation to rebut the presumption that the testator intentionally destroyed the will.

Who Must Be Notified?

If a copy of a will is being probated, all heirs-at-law must be formally notified—not just the beneficiaries named in the will. This means that anyone who would inherit under Texas intestacy laws (such as children or spouses) has the right to contest the will’s validity.

For example:

• If a father leaves everything to his daughter in his will but the son is omitted, the son must still be notified of the probate case.
• The son then has the opportunity to argue that their father revoked the will, meaning both children would inherit equally under intestacy laws.

How to Avoid This Issue

The best way to prevent complications with a lost will is to ensure the original is safely stored and accessible. Consider these steps:

• Store the will in a safe but accessible place (not a bank safety deposit box unless a trusted individual has access).
• Inform the executor and key family members where the will is located.
• Make a new will if the original is lost rather than relying on a copy.

Final Thoughts

Probating a lost will can be a lengthy and contested process, often leading to family disputes. The best approach is to ensure the original will is protected and that those responsible for executing it know where to find it. If a will is missing, acting quickly with legal guidance can help prevent unnecessary complications in the probate process.

‍