Sometimes the original will simply cannot be found — only a photocopy, a scan, or the attorney’s file copy survives. Texas does let you probate a will that is not produced in court, but the path is steeper, because the law starts by assuming a missing will was intentionally destroyed.
The Presumption of Revocation
If a will was last known to be in the maker’s possession and cannot be located after death, Texas courts presume it was revoked — that the maker destroyed it on purpose. The presumption is rebuttable: with the right evidence, you can convince the court the maker did not intend to cancel it.
What You Must Prove
- That the will cannot be produced, and the cause of its nonproduction (enough to satisfy the court it can’t be found by reasonable diligence)
- That the will was validly executed — the same proof required for any will
- The contents of the will, substantially proved by a credible witness who read the original or a copy, heard it read, or can identify a copy
Evidence That Helps
A photocopy or scan of the will, the drafting attorney’s records, and testimony about the maker’s continued intentions all help rebut the revocation presumption. Notably, a copy that includes a copy of the self-proving affidavit can still make the will self-proved, which simplifies proof of execution.
When the Original Turns Up Missing After Four Years
Lost-will cases often surface late, so the four-year deadline can also come into play. Because these cases are evidence-intensive and easy to lose on a technicality, they are worth handling with experienced help. If a will truly cannot be established, the estate may pass by intestate succession instead.
Frequently Asked Questions
Can you probate a copy of a will in Texas?
Yes. Texas allows probate of a will that cannot be produced, but you must prove why the original is missing, that it was validly executed, and its contents.
What is the presumption of revocation?
If a will was last known to be in the maker’s possession and cannot be found, the court presumes the maker destroyed it to revoke it. That presumption can be rebutted with evidence.
How do you prove the contents of a lost will?
Through a credible witness who read the original or a copy, heard it read, or can identify a copy, along with proof of proper execution.
Talk With a Texas Probate Attorney
Only have a copy of the will? We can evaluate whether it can be probated and build the proof. Call 713-955-6182 or contact The De Leon Law Firm to get started.