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A problem that comes up from time to time is the issue of a lost will. Lost wills are problems because there is a presumption that when a will cannot be found, the testator revoked the will by destroying it. One of the methods by which a will can be revoked is by destroying the original copy of the will. When a will was last known to be in the decedent's possession and cannot be located after death, a rebuttable presumption of revocation arises. In order to overcome that presumption, the proponent of the will must prove that the testator continued to have affection for the chief beneficiary of the lost will. If the continued affection is proven and there is no evidence to show the decedent was dissatisfied with the will or had any desire to cancel or change the will, the proof is sufficient for the court to admit the lost will to probate. This assumes of course that the requirements of proving the contents of the lost will have been met.

In order to probate a lost will, the proponent of the will has to overcome that presumption of revocation as well as prove the contents of the lost will.

The Texas probate code has a section that deals specifically with lost wills and what is required to prove them up (PC §85). A proponent of a written will which cannot be produced in court must prove:

1. the requirements for a valid written will to be admitted to probate,e.g.what you would normally have to prove if the will was produced including that it was not revoked,
2. the cause of the written will's non-production and that such cause satisfies the court that the will cannot be produced through reasonable diligence, and
3. the contents of the will must be substantially proved by a credible witness who has read the will, heard it read, or can identify a copy of the will. 

If the proponent of the will proves the three things above, the court will admit a loss will to probate. 324 S.W.3d 257

The form of probate most familiar to clients is the probate of the will with the appointment of an executor. This provides for probate of a will with full administration of the estate by the person nominated in the will of the Decedent as executor.

The majority of wills filed in Texas contain language similar to the following, "I appoint [Name] to be the Independent Executor of this will to serve without bond. My Independent Executor shall act independently of any court, and I direct that no action shall be had in the county or other probate court in relation to the settlement of my estate other than the probating and recording of this, my Last Will and Testament, and the return of an inventory, appraisement and list of claims of my estate. This language creates an independent administration of the Decedent's estate pursuant to 145(b) of the TPC. No specific language is required to make the administration independent. Any language is sufficient if it indicates that the estate administration is to be free of court supervision.

The purpose of an independent administration is to permit the executor to administer the estate and distribute its assets free of judicial supervision with a minimum of cost and delay. 

If a will does not state that the executor is to be independent, then he will be a dependent executor. A dependent executor is not normally desirable because he must get court approval for everything that he does. This takes time and money. There are situations, however, where an executor might want to be a dependent rather than an independent executor. If there is a conflict among the decedent's heirs, the executor can protect himself from problems by having a hearing and having the judge rule on everything that he does. This is not normally a problem and most people will want an independent executor.