Skip to main content.
site logo and link to Texas Legislative Council home page
Texas Legislative Council
Estates and Guardianship Code
Proposed Chapters
81C479(1) MTB

81C479(1) MTB

 

CHAPTER 256.  PROBATE OF WILLS GENERALLY

SUBCHAPTER A. EFFECTIVENESS OF WILL; PERIOD FOR PROBATE

Sec. 256.001.  WILL NOT EFFECTIVE UNTIL PROBATED ..........  2

Sec. 256.002.  PROBATE BEFORE DEATH VOID ..................  3

Sec. 256.003.  PERIOD FOR ADMITTING WILL TO PROBATE;

                 PROTECTION FOR CERTAIN PURCHASERS ........  3

[Sections 256.004-256.050 reserved for expansion]

SUBCHAPTER B.  APPLICATION REQUIREMENTS

Sec. 256.051.  ELIGIBLE APPLICANTS FOR PROBATE OF WILL ....  4

Sec. 256.052.  CONTENTS OF APPLICATION FOR PROBATE OF

                 WRITTEN WILL GENERALLY ...................  5

Sec. 256.053.  FILING OF WRITTEN WILL WITH APPLICATION

                 FOR PROBATE GENERALLY REQUIRED ...........  7

Sec. 256.054.  ADDITIONAL APPLICATION REQUIREMENTS WHEN

                 NO WRITTEN WILL IS PRODUCED ..............  8

[Sections 256.055-256.100 reserved for expansion]

SUBCHAPTER C.  PROCEDURES FOR SECOND APPLICATION

Sec. 256.101.  PROCEDURE ON FILING OF SECOND

                 APPLICATION WHEN ORIGINAL APPLICATION

                 HAS NOT BEEN HEARD ....................... 10

Sec. 256.102.  PROCEDURE ON FILING OF SECOND

                 APPLICATION FOR PROBATE AFTER FIRST

                 WILL HAS BEEN ADMITTED ................... 11

Sec. 256.103.  PROCEDURE WHEN APPLICATION FOR PROBATE

                 IS FILED AFTER LETTERS OF

                 ADMINISTRATION HAVE BEEN GRANTED ......... 11

[Sections 256.104-256.150 reserved for expansion]

SUBCHAPTER D. REQUIRED PROOF FOR PROBATE OF WILL

Sec. 256.151.  GENERAL PROOF REQUIREMENTS ................. 12

Sec. 256.152.  ADDITIONAL PROOF REQUIRED FOR PROBATE OF

                 WILL ..................................... 14

Sec. 256.153.  AUTHORIZED METHODS OF PROVING ATTESTED

                 WRITTEN WILL ............................. 15

Sec. 256.154.  AUTHORIZED METHODS OF PROVING

                 HOLOGRAPHIC WILL ......................... 17

Sec. 256.155.  PROCEDURES FOR DEPOSITIONS WHEN NO

                 CONTEST IS FILED ......................... 18

Sec. 256.156.  PROOF OF WRITTEN WILL NOT PRODUCED IN

                 COURT .................................... 19

Sec. 256.157.  TESTIMONY REGARDING PROBATE TO BE

                 COMMITTED TO WRITING ..................... 20

[Sections 256.158-256.200 reserved for expansion]

SUBCHAPTER E.  ADMISSION OF WILL TO, AND PROCEDURES FOLLOWING, PROBATE

Sec. 256.201.  ADMISSION OF WILL TO PROBATE ............... 20

Sec. 256.202.  CUSTODY OF PROBATED WILL ................... 21

Sec. 256.203.  ESTABLISHING CONTENTS OF WILL NOT IN

                 COURT'S CUSTODY .......................... 22

Sec. 256.204.  PERIOD FOR CONTEST ......................... 22

CHAPTER 256.  PROBATE OF WILLS GENERALLY

SUBCHAPTER A. EFFECTIVENESS OF WILL; PERIOD FOR PROBATE

Revised Law

Sec. 256.001.  WILL NOT EFFECTIVE UNTIL PROBATED.  Except as provided by Subtitle ___ [[[Secs. 95-107A, Tex. Prob. Code]]] with respect to foreign wills, a will is not effective to prove title to, or the right to possession of, any property disposed of by the will until the will is admitted to probate.  (Tex. Prob. Code, Sec. 94.)

Source Law

Sec. 94.  Except as hereinafter provided with respect to foreign wills, no will shall be effectual for the purpose of proving title to, or the right to the possession of, any real or personal property disposed of by the will, until such will has been admitted to probate.

Revisor's Note

(1)  Section 94, Texas Probate Code, provides that "[e]xcept as hereinafter provided" with respect to foreign wills, a will is not effective for certain purposes until probated. The revised law substitutes "Except as provided by Subtitle ___" [[[Secs. 95-107A, Tex. Prob. Code]]] for the quoted language because the provisions of the Texas Probate Code applicable to foreign wills are Sections 95 through 107A, and those sections are revised as Subtitle ___ of this code.

(2)  Section 94, Texas Probate Code, refers to "real or personal property."  Throughout this chapter, the revised law omits the reference to "real or personal" as unnecessary because Section 311.005(4), Government Code (Code Construction Act), applicable to the revised law, defines "property" to mean real and personal property.

Revised Law

Sec. 256.002.  PROBATE BEFORE DEATH VOID.  The probate of a will of a living person is void.  (Tex. Prob. Code, Sec. 72(a) (part).)

Source Law

Sec. 72.  (a)  The probate of a will or … of a living person shall be void; … .

Revised Law

Sec. 256.003.  PERIOD FOR ADMITTING WILL TO PROBATE; PROTECTION FOR CERTAIN PURCHASERS.  (a)  A will may not be admitted to probate after the fourth anniversary of the testator's death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator's death.

(b)  Letters testamentary may not be issued if a will is admitted to probate after the fourth anniversary of the testator's death.

(c)  A person who for value, in good faith, and without knowledge of the existence of a will purchases property from a decedent's heirs after the fourth anniversary of the decedent's death shall be held to have good title to the interest that the heir or heirs would have had in the absence of a will, as against the claim of any devisee under any will that is subsequently offered for probate.  (Tex. Prob. Code, Sec. 73.)

Source Law

Sec. 73.  (a)  No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.

(b)  If any person shall purchase real or personal property from the heirs of a decedent more than four years from the date of the death of the decedent, for value, in good faith, and without knowledge of the existence of a will, such purchaser shall be held to have good title to the interest which such heir or heirs would have had in the absence of a will, as against the claims of any devisees or legatees under any will which may thereafter be offered for probate.

Revisor's Note

Section 73(b), Texas Probate Code, refers to "devisees or legatees" under a will.  The revised law omits the reference to "legatees" because Section 3(i), Texas Probate Code, revised as Section _________ of this code, provides that "devisee" includes "legatee."

[Sections 256.004-256.050 reserved for expansion]

SUBCHAPTER B.  APPLICATION REQUIREMENTS

Revised Law

Sec. 256.051.  ELIGIBLE APPLICANTS FOR PROBATE OF WILL.  (a)  An executor named in a will or an interested person may file an application with the court for an order admitting a will to probate, whether the will is:

(1)  written or unwritten;

(2)  in the applicant's possession or not;

(3)  lost;

(4)  destroyed; or

(5)  outside of this state.

(b)  An application for the probate of a will may be combined with an application for the appointment of an executor or administrator.  A person interested in either the probate or the appointment may apply for both.  (Tex. Prob. Code, Sec. 76 (part).)

Source Law

Sec. 76.  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… .

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.

Revisor's Note

Section 76, Texas Probate Code, in part provides that a person may apply to the "court of a proper county" to admit a will to probate.  Section 6, Texas Probate Code, redesignated as Section 6 of this code, prescribes the venue for the admission of a will to probate.  That provision applies by its terms to an application described by this section, and an explicit statement requiring that the application be filed in the "proper county" is unnecessary. For that reason, the revised law omits the reference to "proper county."

Revised Law

Sec. 256.052.  CONTENTS OF APPLICATION FOR PROBATE OF WRITTEN WILL GENERALLY.  (a)  An application for the probate of a written will must state and aver the following to the extent each is known to the applicant or can, with reasonable diligence, be ascertained by the applicant:

(1)  each applicant's name and domicile;

(2)  the testator's name, domicile, and, if known, age, on the date of the testator's death;

(3)  the fact, time, and place of the testator's death;

(4)  facts showing that the court with which the application is filed has venue;

(5)  that the testator owned property, including a statement generally describing the property and the property's probable value;

(6)  the date of the will;

(7)  the name and residence of:

(A)  any executor named in the will or, if no executor is named, of the person to whom the applicant desires that letters be issued; and

(B)  each subscribing witness to the will, if any;

(8)  whether one or more children born to or adopted by the testator after the testator executed the will survived the testator and, if so, the name of each of those children;

(9)  whether the testator was ever divorced and, if so, when and from whom;

(10)  whether the state, a governmental agency of the state, or a charitable organization is named in the will as a devisee; and

(11)  that the executor named in the will, the applicant, or another person to whom the applicant desires that letters be issued is not disqualified by law from accepting the letters.

(b)  If an applicant does not state or aver any matter required by Subsection (a) in the application, the application must state the reason the matter is not stated and averred.  (Tex. Prob. Code, Sec. 81(a) (part).)

Source Law

(a)  …  An application for probate of a written will shall state:

(1)  The name and domicile of each applicant.

(2)  The name, age if known, and domicile of the decedent, and the fact, time, and place of death.

(3)  Facts showing that the court has venue.

(4)  That the decedent owned real or personal property, or both, describing the same generally, and stating its probable value.

(5)  The date of the will, the name and residence of the executor named therein, if any, and if none be named, then the name and residence of the person to whom it is desired that letters be issued, and also the names and residences of the subscribing witnesses, if any.

(6)  Whether a child or children born or adopted after the making of such will survived the decedent, and the name of each such survivor, if any.

(7)  That such executor or applicant, or other person to whom it is desired that letters be issued, is not disqualified by law from accepting letters.

(8)  Whether the decedent was ever divorced, and if so, when and from whom.

(9)  Whether the state, a governmental agency of the state, or a charitable organization is named by the will as a devisee.

The foregoing matters shall be stated and averred in the application to the extent that they are known to the applicant, or can with reasonable diligence be ascertained by him, and if any of such matters is not stated or averred in the application, the application shall set forth the reason why such matter is not so stated and averred.

Revisor's Note

Section 81(a), Texas Probate Code, requires an application for the probate of a written will to contain specified information concerning the "decedent."  In this context, it is clear that the decedent is the person who executed the will that is the subject of the application, and that person is more commonly referred to as a testator.  For that reason, the revised law substitutes references to the "testator" for references to the "decedent" for consistency of terminology.

Revised Law

Sec. 256.053.  FILING OF WRITTEN WILL WITH APPLICATION FOR PROBATE GENERALLY REQUIRED.  (a)  An applicant for the probate of a written will shall file the will with the application if the will is in the applicant's control.

(b)  A will filed under Subsection (a) must remain in the custody of the county clerk unless removed from the clerk's custody by a court order.  (Tex. Prob. Code, Sec. 81(a) (part).)

Source Law

Sec. 81.  (a)  For Probate of a Written Will.  A written will shall, if within the control of the applicant, be filed with the application for its probate, and shall remain in the custody of the county clerk unless removed therefrom by order of a proper court… .

Revisor's Note

Section 81(a), Texas Probate Code, refers to an order of a "proper court."  General laws of jurisdiction prescribe which courts have jurisdiction of the matters with respect to which the referenced order would be rendered, making those courts the proper courts to render orders in those matters.  See, for example, Sections 4 and 5, Texas Probate Code, redesignated as Sections 4 and 5 of this code, and Section 25.0003, Government Code, which provide for certain courts' jurisdiction of probate proceedings.  A court may render an enforceable order with respect to a matter only if the court has jurisdiction of the matter, and an explicit statement requiring that the court rendering the order be a "proper" court is unnecessary.  For that reason, the revised law omits the term "proper."

Revised Law

Sec. 256.054.  ADDITIONAL APPLICATION REQUIREMENTS WHEN NO WRITTEN WILL IS PRODUCED.  In addition to the requirements for an application under Section 256.052, if an applicant for the probate of a written will cannot produce the will in court, the application must state:

(1)  the reason the will cannot be produced;

(2)  the contents of the will, as far as known; and

(3)  the name, age, marital status, and address, if known, and the relationship to the testator, if any, of:

(A)  each devisee;

(B)  each person who would inherit as an heir of the testator in the absence of a valid will; and

(C)  in the case of partial intestacy, each heir of the testator.  (Tex. Prob. Code, Sec. 81(b).)

Source Law

(b)  For Probate of Written Will Not Produced. When a written will cannot be produced in court, in addition to the requirements of Subsection (a) hereof, the application shall state:

(1)  The reason why such will cannot be produced.

(2)  The contents of such will, as far as known.

(3)  The date of such will and the executor appointed therein, if any, as far as known.

(4)  The name, age, marital status, and address, if known, and the relationship to the decedent, if any, of each devisee, and of each person who would inherit as an heir in the absence of a valid will, and, in cases of partial intestacy, of each heir.

Revisor's Note

(1)  Section 81(b)(3), Texas Probate Code, requires an applicant for the probate of a written will who cannot produce the will in court to include in the application the "date of such will and the executor appointed therein, if any, as far as known."  The revised law omits the quoted language as duplicative because Section 81(a)(5), Texas Probate Code, revised in this chapter in Section 256.052, requires an application for the probate of a will to state the date of the will and the name of any executor named in the will to the extent that information is known to the applicant or can with reasonable diligence be ascertained by the applicant.

(2)  Section 81(b)(4), Texas Probate Code, requires an application for the probate of a written will that cannot be produced in court to contain specified information concerning the "decedent."  The revised law substitutes a reference to the "testator" for the reference to the "decedent" for the reason stated in the revisor's note to Section 256.052 of this chapter.

[Sections 256.055-256.100 reserved for expansion]

SUBCHAPTER C.  PROCEDURES FOR SECOND APPLICATION

Revised Law

Sec. 256.101.  PROCEDURE ON FILING OF SECOND APPLICATION WHEN ORIGINAL APPLICATION HAS NOT BEEN HEARD.  If, after an application for the probate of a decedent's will or the appointment of a personal representative for the decedent's estate has been filed but before the application is heard, an application is filed for the probate of a will of the same decedent that has not previously been presented for probate, the court shall:

(1)  hear both applications together; and

(2)  determine:

(A)  if both applications are for the probate of a will, which will should be admitted to probate, if either, or whether the decedent died intestate; or

(B)  if only one application is for the probate of a will, whether the will should be admitted to probate or whether the decedent died intestate.  (Tex. Prob. Code, Sec. 83(a).)

Source Law

Sec. 83.  (a)  Where Original Application Has Not Been Heard. If, after an application for the probate of a will or for the appointment of a general personal representative has been filed, and before such application has been heard, an application for the probate of a will of the decedent, not theretofore presented for probate, is filed, the court shall hear both applications together and determine what instrument, if any, should be admitted to probate, or whether the decedent died intestate.

Revisor's Note

Section 83(a), Texas Probate Code, refers to an application for the appointment of a "general personal representative." The revised law omits "general" because "personal representative" is the term defined by Section 3(aa), Texas Probate Code, revised in this code as Section ____, and no other provision of the Texas Probate Code refers to a "general" personal representative. It is clear from the context that the statute is referring to a personal representative as defined by Section ____ [[[Sec. 3(aa), Tex. Prob. Code]]] of this code.

Revised Law

Sec. 256.102.  PROCEDURE ON FILING OF SECOND APPLICATION FOR PROBATE AFTER FIRST WILL HAS BEEN ADMITTED.  If, after a decedent's will has been admitted to probate, an application is filed for the probate of a will of the same decedent that has not previously been presented for probate, the court shall determine:

(1)  whether the former probate should be set aside; and

(2)  if the former probate is to be set aside, whether:

(A)  the other will should be admitted to probate; or

(B)  the decedent died intestate.  (Tex. Prob. Code, Sec. 83(b).)

Source Law

(b)  Where First Will Has Been Admitted to Probate. If, after a will has been admitted to probate, an application for the probate of a will of the decedent, not theretofore presented for probate, is filed, the court shall determine whether the former probate should be set aside, and whether such other will should be admitted to probate, or whether the decedent died intestate.

Revised Law

Sec. 256.103.  PROCEDURE WHEN APPLICATION FOR PROBATE IS FILED AFTER LETTERS OF ADMINISTRATION HAVE BEEN GRANTED.  (a)  A lawful will of a decedent that is discovered after letters of administration have been granted on the decedent's estate may be proved in the manner provided for the proof of wills.

(b)  The court shall allow an executor named in a will described by Subsection (a) who is not disqualified to qualify and accept as executor.  The court shall revoke the previously granted letters of administration.

(c)  If an executor is not named in a will described by Subsection (a), or if the executor named is disqualified or dead, renounces the executorship, fails or is unable to accept and qualify before the 21st day after the date of the probate of the will, or fails to present the will for probate before the 31st day after the discovery of the will, the court, as in other cases, shall grant an administration with the will annexed of the testator's estate.

(d)  An act performed by the first administrator before the executor described by Subsection (b) or the administrator with the will annexed described by Subsection (c) qualifies is as valid as if no will had been discovered.  (Tex. Prob. Code, Sec. 83(c).)

Source Law

(c)  Where Letters of Administration Have Been Granted.  Whenever letters of administration shall have been granted upon an estate, and it shall afterwards be discovered that the deceased left a lawful will, such will may be proved in the manner provided for the proof of wills;  and, if an executor is named in such will, and he is not disqualified, he shall be allowed to qualify and accept as such executor, and the letters previously granted shall be revoked;  but, if no such executor be named in the will, or if the executor named be disqualified, be dead, or shall renounce the executorship, or shall fail or be unable to accept and qualify within twenty days after the date of the probate of the will, or shall fail for a period of thirty days after the discovery of such will to present it for probate, then administration with the will annexed of the estate of such testator shall be granted as in other cases.  All acts done by the first administrator, prior to the qualification of the executor or of the administrator with the will annexed, shall be as valid as if no such will had been discovered.

[Sections 256.104-256.150 reserved for expansion]

SUBCHAPTER D. REQUIRED PROOF FOR PROBATE OF WILL

Revised Law

Sec. 256.151.  GENERAL PROOF REQUIREMENTS.  An applicant for the probate of a will must prove to the court's satisfaction that:

(1)  the testator is dead;

(2)  four years have not elapsed since the date of the testator's death and before the application;

(3)  the court has jurisdiction and venue over the estate;

(4)  citation has been served and returned in the manner and for the period required by this title; and

(5)  the person for whom letters testamentary or of administration are sought is entitled by law to the letters and is not disqualified.  (Tex. Prob. Code, Sec. 88(a) (part).)

Source Law

Sec. 88.  (a)  General Proof.  Whenever an applicant seeks to probate a will … he must first prove to the satisfaction of the court:

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

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

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

(4)  That the person for whom letters testamentary or of administration are sought is entitled thereto by law and is not disqualified.

Revisor's Note

(1)  Section 88(a), Texas Probate Code, requires that an applicant for the probate of a will prove that "the person" is dead, and that a specified period has not elapsed since "his" death.  It is clear from the context that the quoted references are to the person who executed the will.  That person is commonly referred to as a "testator."  For clarity and the convenience of the reader, the revised law substitutes references to the "testator" and the "testator's" death for the quoted references.

(2)  Section 88(a)(3), Texas Probate Code, requires an applicant for the probate of a will to prove that citation has been served and returned in the manner and for the period required by "this Code," meaning the Texas Probate Code. The revised law substitutes a reference to "this title" for the reference to "this Code" because the citation requirements for the probate of a will are revised in Title 2 of this code, and this section is included in that title.

Revised Law

Sec. 256.152.  ADDITIONAL PROOF REQUIRED FOR PROBATE OF WILL.  (a)  An applicant for the probate of a will must prove the following to the court's satisfaction, in addition to the proof required by Section 256.151, to obtain the probate:

(1)  the testator did not revoke the will; and

(2)  if the will is not self-proved as provided by this title, the testator:

(A)  executed the will with the formalities and solemnities and under the circumstances required by law to make the will valid; and

(B)  at the time of executing the will, was of sound mind and:

(i)  was 18 years of age or older;

(ii)  was or had been married; or

(iii)  was a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service.

(b)  A will that is self-proved as provided by this title is not required to have any additional proof that the will was executed with the formalities and solemnities and under the circumstances required to make the will valid.  (Tex. Prob. Code, Secs. 84(a), 88(b).)

Source Law

Sec. 84.  (a)  Self-Proved Will.  If a will is self-proved as provided in this Code, no further proof of its execution with the formalities and solemnities and under the circumstances required to make it a valid will shall be necessary.

[Sec. 88]

(b)  Additional Proof for Probate of Will. To obtain probate of a will, 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 eighteen 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 thereof, 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.

Revisor's Note

(1)  Sections 84(a) and 88(b)(1) and (2), Texas Probate Code, refer to a will that is not self-proved, or is self-proved, as provided in "this Code," meaning the Texas Probate Code. Throughout this chapter, the revised law substitutes a reference to "this title" for the reference to "this Code" when used in this context because the provisions of the Texas Probate Code that specify the requirements for a will to be considered self-proved are revised in Title 2 of this code, and this chapter is included in that title.

(2)  Section 88(b)(1), Texas Probate Code, requires proof in certain circumstances that the testator was or had been "lawfully married." The revised law omits "lawfully" in this context as unnecessary because the requirement that the testator was or had been married is sufficient to convey that the marriage must have met the legal requirements for a marriage.

Revised Law

Sec. 256.153.  AUTHORIZED METHODS OF PROVING ATTESTED WRITTEN WILL.  (a)  An attested written will produced in court that is not self-proved as provided by this title may be proved in the manner provided by this section.

(b)  A will described by Subsection (a) may be proved by the sworn testimony or affidavit of one or more of the subscribing witnesses to the will taken in open court.

(c)  If all the witnesses to a will described by Subsection (a) are nonresidents of the county or the witnesses who are residents of the county are unable to attend court, the will may be proved:

(1)  by the sworn testimony of one or more of the witnesses by written or oral deposition taken in the same manner and under the same rules as depositions are taken in other civil actions;

(2)  if no opposition in writing to the will is filed on or before the date set for the hearing on the will, by the sworn testimony or affidavit of two witnesses taken in open court, or by deposition as provided by Subdivision (1), to the signature or the handwriting evidenced by the signature of:

(A)  one or more of the attesting witnesses; or

(B)  the testator, if the testator signed the will; or

(3)  if it is shown under oath to the court's satisfaction that, after a diligent search was made, only one witness can be found who can make the required proof, by the sworn testimony or affidavit of that witness taken in open court, or by deposition as provided by Subdivision (1), to a signature, or the handwriting evidenced by a signature, described by Subdivision (2).

(d)  If none of the witnesses to a will described by Subsection (a) are living, or if each of the witnesses is a member of the armed forces or the armed forces reserves of the United States, an auxiliary of the armed forces or armed forces reserves, or the United States Maritime Service and is beyond the court's jurisdiction, the will may be proved:

(1)  by two witnesses to the handwriting of one or both of the subscribing witnesses to the will or the testator, if the testator signed the will, by:

(A)  sworn testimony or affidavit taken in open court; or

(B)  written or oral deposition taken in the same manner and under the same rules as depositions are taken in other civil actions; or

(2)  if it is shown under oath to the court's satisfaction that, after a diligent search was made, only one witness can be found who can make the required proof, by the sworn testimony or affidavit of that witness taken in open court, or by deposition as provided by Subdivision (1), to a signature or the handwriting described by Subdivision (1).  (Tex. Prob. Code, Sec. 84(b).)

Source Law

(b)  Attested Written Will.  If not self-proved as provided in this Code, an attested written will produced in court may be proved:

(1)  By the sworn testimony or affidavit of one or more of the subscribing witnesses thereto, taken in open court.

(2)  If all the witnesses are non-residents of the county, or those who are residents are unable to attend court, by the sworn testimony of any one or more of them by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or, if no opposition in writing to such will is filed on or before the date set for hearing thereon, then by the sworn testimony or affidavit of two witnesses taken in open court, or by deposition in the manner provided herein, to the signature or the handwriting evidenced thereby of one or more of the attesting witnesses, or of the testator, if he signed the will; or, if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner provided herein, to such signatures or handwriting.

(3)  If none of the witnesses is living, or if all of such witnesses are members of the armed forces of the United States of America or of any auxiliary thereof, or of the armed forces reserve of the United States of America or of any auxiliary thereof, or of the Maritime Service, and are beyond the jurisdiction of the court, by two witnesses to the handwriting of one or both of the subscribing witnesses thereto, or of the testator, if signed by him, and such proof may be either by sworn testimony or affidavit taken in open court, or by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or, if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner provided herein, to such signatures or handwriting.

Revised Law

Sec. 256.154.  AUTHORIZED METHODS OF PROVING HOLOGRAPHIC WILL.  A will wholly in the handwriting of the testator that is not self-proved as provided by this title may be proved by two witnesses to the testator's handwriting. The evidence may be by:

(1)  sworn testimony or affidavit taken in open court; or

(2)  if the witnesses are nonresidents of the county or are residents who are unable to attend court, written or oral deposition taken in the same manner and under the same rules as depositions are taken in other civil actions.  (Tex. Prob. Code, Sec. 84(c).)

Source Law

(c)  Holographic Will.  If not self-proved as provided in this Code, a will wholly in the handwriting of the testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court, or, if such witnesses are non-residents of the county or are residents who are unable to attend court, by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions.

Revised Law

Sec. 256.155.  PROCEDURES FOR DEPOSITIONS WHEN NO CONTEST IS FILED.  (a)  This section, rather than Sections 256.153(c) and (d) and 256.154 regarding the taking of depositions under the same rules as depositions in other civil actions, applies if no contest has been filed with respect to an application for the probate of a will.

(b)  Depositions for the purpose of establishing a will may be taken in the manner provided by Section ____ [[[Sec. 22, Tex. Prob. Code]]] for the taking of depositions when there is no opposing party or attorney of record on whom notice and copies of interrogatories may be served.  (Tex. Prob. Code, Sec. 84(d).)

Source Law

(d)  Depositions if No Contest Filed.  If no contest has been filed, depositions for the purpose of establishing a will may be taken in the same manner as provided in this Code for the taking of depositions where there is no opposing party or attorney of record upon whom notice and copies of interrogatories may be served; and, in such event, this Subsection, rather than the preceding portions of this Section which provide for the taking of depositions under the same rules as depositions in other civil actions, shall be applicable.

Revisor's Note

Section 84(d), Texas Probate Code, provides that if no contest to an application for the probate of a will has been filed, depositions for the purpose of establishing a will may be taken in the same manner provided by "this Code," meaning the Texas Probate Code, for the taking of depositions when there is no opposing party or attorney of record on whom notice and copies of interrogatories may be served. For the convenience of the reader, the revised law substitutes a reference to "Section ___" [[[Sec. 22, Tex. Prob. Code]]] for the reference to "this Code" because the provisions for taking depositions in that circumstance are contained in Section 22, Texas Probate Code, and that section is revised as Section ___ of this code.

Revised Law

Sec. 256.156.  PROOF OF WRITTEN WILL NOT PRODUCED IN COURT.  (a)  A written will that cannot be produced in court must be proved in the same manner as provided in Section 256.153 for an attested written will or Section 256.154 for a holographic will, as applicable.  The same amount and character of testimony is required to prove the written will not produced in court as is required to prove a written will produced in court.

(b)  In addition to the proof required by Subsection (a):

(1)  the cause of the nonproduction of a written will not produced in court must be proved, which must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced; and

(2)  the contents of the 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. (Tex. Prob. Code, Sec. 85.)

Source Law

Sec. 85.  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.

Revised Law

Sec. 256.157.  TESTIMONY REGARDING PROBATE TO BE COMMITTED TO WRITING.  (a)  Except as provided by Subsection (b), all testimony taken in open court on the hearing of an application to probate a will must be:

(1)  committed to writing at the time the testimony is taken;

(2)  subscribed and sworn to in open court by the witness; and

(3)  filed by the clerk.

(b)  In a contested case, the court, on the agreement of the parties or, if there is no agreement, on the court's own motion, may waive the requirements of Subsection (a).  (Tex. Prob. Code, Sec. 87.)

Source Law

Sec. 87.  All testimony taken in open court upon the hearing of an application to probate a will shall be committed to writing at the time it is taken, and subscribed, and sworn to in open court by the witness or witnesses, and filed by the clerk; provided, however, that in any contested case, the court may, upon agreement of the parties, and in the event of no agreement on its own motion, dismiss this requirement.

[Sections 256.158-256.200 reserved for expansion]

SUBCHAPTER E.  ADMISSION OF WILL TO, AND PROCEDURES FOLLOWING, PROBATE

Revised Law

Sec. 256.201.  ADMISSION OF WILL TO PROBATE.  If the court is satisfied on the completion of hearing an application for the probate of a will that the will should be admitted to probate, the court shall enter an order admitting the will to probate.  Certified copies of the will and the order admitting the will to probate, or of the record of the will and order, and the record of testimony, may be:

(1)  recorded in other counties; and

(2)  used in evidence, as the originals may be used, on the trial of the same matter in any other court when taken to that court by appeal or otherwise.  (Tex. Prob. Code, Sec. 89.)

Source Law

Sec. 89.  Upon the completion of hearing of an application for the probate of a will, if the Court be satisfied that such will should be admitted to probate, an order to that effect shall be entered.  Certified copies of such will and the order, or of the record thereof, and the record of testimony, may be recorded in other counties, and may be used in evidence, as the original might be, on the trial of the same matter in any other court, when taken there by appeal or otherwise.

Revised Law

Sec. 256.202.  CUSTODY OF PROBATED WILL.  An original will and the probate of the will shall be deposited in the office of the county clerk of the county in which the will was probated.  The will and probate of the will shall remain in that office except during a time the will and the probate of the will are removed for inspection to another place on an order of the court where the will was probated.  If that court orders the original will to be removed to another place for inspection:

(1)  the person removing the will shall give a receipt for the will; and

(2)  the court clerk shall make and retain a copy of the will.  (Tex. Prob. Code, Sec. 90.)

Source Law

Sec. 90.  All original wills, together with the probate thereof, shall be deposited in the office of the county clerk of the county wherein the same shall have been probated, and shall there remain, except during such time as they may be removed for inspection to another place upon order by the court where probated.  If the court shall order an original will to be removed to another place for inspection, the person removing such original will shall give a receipt therefor, and the clerk of the court shall make and retain a copy of such original will.

Revised Law

Sec. 256.203.  ESTABLISHING CONTENTS OF WILL NOT IN COURT'S CUSTODY.  If for any reason a written will is not in the court's custody, the court shall find the contents of the will by written order.  Certified copies of the contents as established by the order may be:

(1)  recorded in other counties; and

(2)  used in evidence, as certified copies of written wills in the custody of the court may be used.  (Tex. Prob. Code, Sec. 91.)

Source Law

Sec. 91.  If for any reason a written will is not in the custody of the court, the court shall find the contents thereof by written order, and certified copies of same as so established by the court may be recorded in other counties, and may be used in evidence, as in the case of certified copies of written wills in the custody of the court.

Revised Law

Sec. 256.204.  PERIOD FOR CONTEST.  (a)  After a will is admitted to probate, an interested person may commence a suit to contest the validity thereof not later than the second anniversary of the date the will was admitted to probate, except that an interested person may commence a suit to cancel a will for forgery or other fraud not later than the second anniversary of the date the forgery or fraud was discovered.

(b)  Notwithstanding Subsection (a), an incapacitated person may commence the contest under that subsection on or before the second anniversary of the date the person's disabilities are removed.  (Tex. Prob. Code, Sec. 93.)

Source Law

Sec. 93.  After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward.  Provided, however, that incapacitated persons shall have two years after the removal of their disabilities within which to institute such contest.

Revisor's Note

Section 93, Texas Probate Code, provides that a person may commence a suit "in the proper court."  The revised law omits the reference to a "proper" court as unnecessary.  General laws of jurisdiction prescribe which courts have jurisdiction with respect to the referenced types of suits, making those courts the proper courts in which to bring suit.  See, for example, Sections 4 and 5, Texas Probate Code, redesignated as Sections 4 and 5 of this code, and Section 25.0003, Government Code, which provide for certain courts' jurisdiction of probate proceedings.  A person may only bring a suit in a court that has jurisdiction, and an explicit statement requiring the court to be "proper" is unnecessary.  In addition, the revised law omits the reference to "court" as unnecessary in this context because a suit may be filed only in a court.

TLC: Estates and Guardianship Code Proposed Chapters

This web page is published by the Texas Legislative Council and was last updated January 6, 2009.