Oh No, I Lost The Will! Now What? 

Personal Injury Lawyer

You knew your loved ones were extremely organized and planned ahead for the one day they would pass away. You knew they had estate planning documents. You even were told where they kept those documents within their house, so you think you have everything under control when you get the call that they have passed away. You go to the place where you were told the documents are. Then you find that the will of the deceased person is gone. You scour the house and every possible place the document could be, and you cannot find it. What now?

Contact an Attorney

First, do not panic. This situation happens more often than one might suspect. As many questions swirl through your head, the best thing you can do is to contact an estate planning lawyer, like an estate planning lawyer in Arlington, TX, immediately. Having someone with a level head who has estate planning experience can be an extremely useful tool during a time like this.

Typically, the first step an attorney would have you do would be to contact the attorney who drafted the document. Attorneys have an ethical duty to retain records for a period of five years. So, if the document was drafted during that time, you may be able to obtain a copy of the will. A copy of the will is a useful tool when attempting to go through the probate process.

What happens if the lawyer does not have a copy? At this point a person has two options. First, and probably the most common solution, is to file a probate application under intestacy laws. Meaning, you would be requesting the court to make a determination that the deceased person died without a will and the estate should be distributed to the person’s heirs. Without a copy of the actual will, this is the simplest option and the option that may lead to the quickest results.

The second option is to attempt to probate the missing will. Regardless of whether you have a copy of the entire document or part of it is missing, an application would have to be filed with the court under the law that applies to lost or stolen wills. The Texas estates code provides that an applicant who is attempting to probate a will may do so, even if the original will is no longer in their possession. However, the estates code further states that there is a presumption under the law that if an original will cannot be produced, the presumption that is made is that the will has, in fact, been revoked by the person who made it. The first step in attempting to probate the lost will would be trying to overcome that presumption.

Probating a Lost Will

In order to successfully probate a lost Will, you must show:

  1. That the will was valid.
  2. Clearly demonstrate why the will cannot be produced, in a manner sufficient to overcome the presumption that the testator revoked it.
  3. Prove the contents of the will through the testimony of a credible witness who read the will, heard the will read, or can identify a copy of the will.

This is not an easy process and would require a very lengthy investigation into the facts and circumstances surrounding the signing and drafting of the original will. The court would likely require several witnesses who have actual knowledge of the contents of the original will. This is likely someone who signed the will, or even the attorney who may have drafted it. A court would require substantial evidence before agreeing to probate the missing will. This process could be incredibly expensive. As there is no guarantee how the court will rule, you may end up still having to probate under the intestacy laws of your state.

It should also be noted that in the event you attempt to probate the lost will, the court must decide on who the decedent’s heirs are and those heirs must all be notified of the filed probate. This opens the door for contesting applications as well as a very lengthy litigation process. If an estate is not worth that much money, the entire estate can be depleted in legal fees before a judge even makes a ruling.

Before you attempt to probate a lost or stolen will, it is imperative that you seek the advice and counsel of an experienced probate attorney. Ensure you have valued the estate of the decedent properly. Make a logical and reasonable decision on how to proceed based on the information you have available. No one plans to be faced with difficult decisions after the death of a loved one. However, sometimes we find ourselves in situations that require making those decisions. Understanding your options is key to making good decisions and having peace of mind when handling the estate of your loved one.



Thanks to Brandy Austin Law Firm, PLLC for their insight into what needs to be done if someone passes away and their heirs cannot find their will.