How Do I Prove My Father Wrote a New Will?

Full Question:

My father recently passed away and left me a piece of land that he owned. I have been paying the taxes on this land for the last 5 yrs. I have the original deed as I purchased this from him 5 yrs ago he had a will drawn up in 2001 and. Had it amended in 2004 where he left this land to me upon his death me and my mom went to bank and each took copy of will then huge fight broke out and my copy of this will was taken from my suitcase.I called my mom when I got hm and she has conventionly lost her copy as well.I want to put this land in my name as I do not trust my mother whatsoever!!!!help
09/04/2011   |   Category: Wills and Es... ยป Will Contests   |   State: Texas   |   #25451


A will which is lost or misplaced poses many difficulties for those expected to inherit from it. Suggested places to look include a safe deposit box, under the mattress, between pages of books, in glove boxes or trunks of vehicles, or wall or floor safes. A court order may be required to look in a safe deposit box if you're not on the signature card.

If you're unable to identify the attorney who drew up the will, you may look through checkbooks to find checks written to attorneys or law firms. As a last resort, one might try cold calling lawyers in the area yellow pages. Be thorough, although an attorney may not remember the client, he or she may have referred them to a paralegal or someone else in the probate department.

Friends of the deceased who may have witnessed the will may be consulted to see if the deceased ever mentioned where the will was kept or who drew it up. The deceased's address book will be a source of names to call.

Some states allow a will to be filed at the courthouse, so you may try calling the courthouse (ask for the Probate Division) to see if the will was filed at the courthouse.

In Texas, a will must be filed for probate within four years after the date the testator died. This statute of limitations has only one exception: if the person applying for probate was not “in default” then the will may be offered to the court as a muniment of title. Default means failure to use reasonable diligence. It may involve the amount of time that has passed, lack of knowledge about the law, and discovery of new information. If the executor won't agree to open the estate, it is possible to file a petition to compel the probate of a will. Please see the links to the forms below.

If it is a survivorship account, or transfer on death account, it passes outside the probate process. That means it will not be included as part of the estate that either passes under a will or according to state intestacy laws (applicable when there is no will). If the account is held as tenants in common, it's possible that the deceased owner's share could pass to heirs. If the parent names only one sibling on a transfer-on-death (TOD) asset, it will not be considered part of the estate that passes under a will. TOD assets go to named beneficiaries.

In order to handle the estate of a deceased person, a petition must be filed in the local probate court where that person resided. The petition would request in part to be appointed as the representative of the estate. Once appointed by the court, the adminstrator/representative would have authority to deal with the assets/debts of the deceased. It is not up to individuals/parents to administer an estate on their own.

When a person dies, their assets are distributed in the probate process. If a person dies with a will, a petition to probate the will is filed with the probate court in the county where the deceased resided at the time of death, asking for letters testamentary to be issued, giving the executor authority to handle the estate affairs. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. The court will issue letters of administration, also called letters testamentary, to the administrator, giving the authority to handle the affairs of the deceased. An heirship affidavit may also be used to conduct estate affairs when a small estate is involved. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process.

If small estate procedures may be used, an affidavit may be used to distribute the assets of the deceased in a summary process. If the estate doesn't qualify as a small estate, it may be necessary to have the estate probated and receive letters testamentary. The court will issue testamentary letters to the executor or administrator, giving the authority to handle the affairs of the deceased.

To dispose of the real property interests of the decedent, the executor executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies, the executor of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under the will.

In Texas, where the value of the entire assets of the estate, not including homestead and exempt property, does not exceed $50,000, a small estate may be administered by a small estate affidavit. After the affidavit has been approved by the court, the affidavit may be used to collect debts owed to the decedent.

The affidavit is filed with the clerk of the court in the county where the deceased resided. It lists certain information required by statutes, such as all of the known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant family history or other facts concerning heirship that show the distributees' rights to receive the money or property of the estate.

For further discussion, please see;

Please see the following Texas statutes:

§ 85 PROB. CODE Proof of Written Will Not Produced in Court [EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1, 2014.]
A written will which cannot be produced in court shall be proved in the same manner as provided in the preceding Section for an attested written will or an holographic will, as the case may be, and the same amount and character of testimony shall be required to prove such will as is required to prove a written will produced in court; but, in addition thereto, the cause of its non-production must be proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contents of such will must be substantially proved by the testimony of a credible witness who has read the will, has heard the will read, or can identify a copy of the will.

§ 76 PROB. CODE Persons Who May Make Application

An executor named in a will or any interested person may make
application to the court of a proper county:

(a) For an order admitting a will to probate, whether the same is
written or unwritten, in his possession or not, is lost, is destroyed, or
is out of the State.

(b) For the appointment of the executor named in the will.

(c) For the appointment of an administrator, if no executor is
designated in the will, or if the person so named is disqualified, or
refuses to serve, or is dead, or resigns, or if there is no will. An
application for probate may be combined with an application for the
appointment of an executor or administrator; and a person interested in
either the probate of the will or the appointment of a personal
representative may apply for both.

§ 89B PROB. CODE Proof Required for Probate of a Will as a Muniment of

(a) General Proof. Whenever an applicant seeks to probate a will as a
muniment of title, the applicant must first prove to the satisfaction of
the court:

(1) That the person is dead, and that four years have not elapsed since
the person's death and prior to the application; and

(2) That the court has jurisdiction and venue over the estate;

(3) That citation has been served and returned in the manner and for
the length of time required by this Code; and

(4) That there are no unpaid debts owing by the estate of the
testator, excluding debts secured by liens on real estate.

(b) To obtain probate of a will as a muniment of title, the applicant
must also prove to the satisfaction of the court:

(1) If the will is not self-proved as provided by this Code, that the
testator, at the time of executing the will, was at least 18 years of
age, or was or had been lawfully married, or was a member of the armed
forces of the United States or of the auxiliaries of the armed forces of
the United States, or of the Maritime Service of the United States, and
was of sound mind; and

(2) If the will is not self-proved as provided by this Code, that the
testator executed the will with the formalities and solemnities and under
the circumstances required by law to make it a valid will; and

(3) That such will was not revoked by the testator.