Surrendering the Last Will and Testament of a Deceased Person Upon His Death

EDITOR’S NOTE:

Texas law has clear requirements regarding last wills and testaments, among them the requirement that any last will and testament be properly filed with the Court. If you or a loved one is facing a possible dispute or will contest under Texas law, reach out to one of our Dallas-based attorneys for a consultation. We may be able to assist you in compelling a trustee to properly file and disseminate a last will and testament as required by law.

Last Wills and Testaments under Texas Law

Did you know that a person in possession of a testator’s will is REQUIRED BY LAW to surrender the will to the County Clerk after the testator’s death EVEN IF the person is not offering, and doesn’t plan to offer, the will for probate?

People wrongfully claim to be the “executor” of a decedent’s estate all the time. Even if they are named in the decedent’s will as the executor, the will is not valid and the person is not the executor until a judge says the will is valid and formally appoints the executor (who must still thereafter take additional steps to qualify for office). Once he is qualified, the executor is required to give a copy of the Will to all the beneficiaries (with very limited exceptions).

However, we get calls all the time from family members along the lines of “My brother/sister/stepfather/stepmother/uncle/aunt says they are the executor of the estate, and they said that I get nothing/very little under the will, but they won’t give me a copy of the will or tell me what my loved one owned.” Many times, the caller isn’t sure whether their loved one actually had a will.

The remedy for such circumstances is outlined in the Texas Estates Code, which provides that on receiving notice of a testator’s death, the person who has custody of the testator’s will shall deliver the will to the clerk of the court that has jurisdiction of the testator’s estate. Although you don’t need an attorney to surrender a will to the clerk, you may need an attorney’s assistance with sending an appropriate notice to the person in possession of the will.

Further, on a sworn written complaint that a person has custody of the last will of a testator, the judge shall have the person cited by personal service to appear and show cause why the person should not deliver the will to the court for probate. What that means is that you can file an application with the court to ask the judge to order the person alleged to be in possession of the will to show up in court to explain to the judge why he is refusing to deliver the will to the clerk.

If that person is cited, and if the judge is satisfied that the person served with the citation had custody of the will at the time the application was filed and the person does not deliver the will or show good cause why the will has not been delivered, the judge may have the person arrested and confined until the person delivers the will.

The person who refuses to deliver a will is also liable to any person aggrieved by the refusal for all damages sustained as a result of the refusal.

If you feel that you are being lied to or taken advantage of by a person claiming to be the executor of a will, you should seek legal representation. Various timelines apply to offering a will for probate or contesting the offering of a will for probate.

Don’t wait until it is too late!

EDITOR’S SUMMARY

In this blog post, we learned that a person in possession of a testator’s will is required by law to surrender the will the County Clerk after the testator’s death even if the person is not offering, or doesn’t plan to offer, the will for probate. If you are facing a possible dispute with a trustee or someone in possession of a will, and you believe you are entitled to some distribution of property under Texas law, reach out to one of our Dallas-based attorneys who specialize in will contests for a consultation. No two situations are alike, and it is imperative to seek the advice of a skilled lawyer.