Who Has the Will?

In many cases, clients come to our law firm with a common concern. Their fact pattern sounds something like this: Aunt Suzy died and we think she left a Will with our uncle, but he won’t show it to us or do anything with it. What can we do?

Laws are written to solve problems, and the laws regarding Wills and inheritance aren’t an exception. Fortunately, this sort of problem has been around for a long time, and so we have a set of laws that address the situation.

The basic policy in Texas is that Wills are not meant to be secret. Our laws encourage people to bring Wills forward, so that interested parties can see the document if they choose. Sometimes, nothing needs to be done with the Will, but it is still important that the physical document be kept in a safe place, where interested parties have the freedom to access it.

Under the former Texas Probate Code, and the new Texas Estates Code, this policy underscores a set of laws designed to compel the production of a Will. When a person in possession of a Will receives notice that the Will’s author has died, that person has an affirmative obligation to deposit the Will with the county clerk in the county where the Decedent lived. That’s it. It takes five minutes, and the county clerks might only charge you a few bucks for depositing the document with them. You get a receipt and the public gets the opportunity to review and inspect the document if they desire.

In a lot of cases, the person in possession doesn’t do their job, however. As you might imagine, our courts don’t take this secretive attitude very lightly. In fact, a person in possession of a Will who refuses to deposit the document with the county clerk (without good cause) can actually be arrested and confined until they produce the document. In light of this very severe consequence, most people simply deposit the Will when they’re asked to.

If you’re faced with an issue regarding a family member or friend of a decedent that refuses to let loose of a Will, understand that the law is on your side. Contact an attorney immediately to take full advantage of your right to have the Will produced.