CUSTODIAN OF A WILL
By:  James M. Bright, Attorney at Law

 The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

 Questions often arise regarding the duties and possible liabilities of the custodian of the will of a deceased person.  “Custodian” for purposes of this article shall mean the person who has possession and/or control of a decedent’s will.  Is he/she required to file it for probate after the decedent’s death?  Should he/she just hold on to it until such time that one of the decedent’s survivors asks for it?  Should he/she try to find one or more of the beneficiaries and give the will to them?

The answer to this question is, actually, none of the above.  Article 75 of the Texas Probate Code instructs the person who has custody of a decedent’s will to deliver it to the clerk of the court which has jurisdiction of the estate.  (This is normally the county where the decedent was domiciled and maintained a fixed place of residence.)  It should be noted that delivery to the county clerk is not the same thing as offering the will for probate.  A probate proceeding would strive to have the will recognized as authentic and ask that it be recognized as the decedent’s enforceable last will and testament.  Filing with the county clerk without an application for probate does not seek Court authentication, but only makes it a part of the Court’s complete record if and when a probate proceeding is ever filed for that particular estate.

It is possible and does “in fact” occur that a decedent might have more than one original document which professes to be his/her Last Will & Testament.  This does not imply that more than one document will be admitted to probate, but it does point out the need to provide the Court with an opportunity to examine each will and determine which, if either, should be recognized and honored.  It is only the original of the will that is subject of this discussion and does not under normal conditions include photocopies of wills.

Occasionally this firm encounters a situation where the person who has possession of a decedent’s will does not wish to file it with the court clerk and may even wish to keep its existence a secret.  The reasons for not wishing to produce a will can vary widely between persons and may run the gambit from very innocent to the very sinister.  One person may erroneously believe that he will take on unwanted financial responsibility and therefore believe that he should not get involved. (“In fact,” there is not normally a court fee for filing the will pursuant to Article 75 of the Probate Code.)  Another person might not file because they are under the belief that they lack authority to do so, while yet another person might not wish to file through a belief that filing might result in differences in distribution of the estate which are not in that particular person’s best pecuniary interest.  A conflict might occur if the person who is in possession of a will is not a beneficiary under the will, or the will does not give them the amount that they feel that they are somehow entitled.  A common example occurs when the person who fails to file the will is a child of the decedent who would otherwise have received little or nothing from the estate, but by withholding the will and relying upon laws of intestate succession, may receive a generous portion of a deceased parent’s estate.

If this occurs, the person who is in possession of a decedent’s will may be compelled to produce the will upon performance of the following steps by persons who wish to have the will recognized:  (V.A.T.S. Prob. Art. 75)

·        A sworn written complaint may be filed with the Court stating that a particular person has possession of the last will and testament of the decedent or other papers belonging to the estate of the testator.  Upon receipt of the complaint, the County Judge shall cause that person to be cited by personal service to appear in court and show cause why he/she should not deliver such will or other documents to the court for probate or why he/she should not deliver such papers to the executor/administrator. 

·        If the person who was cited to appear fails to deliver the will or such documents that the Court is convinced were in his/her possession at the time of citation, then the Judge may cause the non-producing party to be arrested and imprisoned until such time that the will or other papers are produced.

·        In addition to the above, a person who refuses to deliver such will or papers shall also be liable to any person who is aggrieved for all damages sustained as a result of such refusal.  Those damages may be recovered in any court of competent jurisdiction.

It is important to remember that any original document that purports to be the last will and testament of the decedent is of interest to the court.  It is good practice, and a way to avoid confusion to the future custodians of your will, for you to physically destroy the original of any will that you do not wish for the court to consider as your last will and testament.

If you are the custodian of the last will and testament for someone other than yourself, your duty in filing can always be clarified through discussions with an attorney of your choice who is familiar with probate law in Texas.

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at

in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see- www.houstontxprobate.com