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GENERAL. E k%TTOlRNEY

OF TEXAS

November 19, 1.969

Hon. Joe Resweber County Attorney Harris County Courthouse Houston, Texas Opinion No. M-511 Re: Filing andrecording of unprobated will in the deed records. Dear Mr, Resweber:

In your letter requesting anopinion from this office, you ask the following questions:

"1

_ Cananunprobated will of adeceased person, attached as anexhibit to anaffidavit of heirship, be filed andrecorded in the deed records of the county clerk? "2. Canthe unrobated will of adeceased person be filed intirecords of the county clerk under any circumstances?" With regard to these questions, you submit the following facts:

"These two questions have arisen because anattorney InHarris County has sought to file the original will of adeceased person, attached as anexhibit to anaffidavit of heirship, along with other instruments constituting afamily agreement to dispense with probate of the will filed,

. . oThe second question arises where awill Is offered for recording in the deed records which Is not attached to anaffidavit of helrshlp or other instrument. At other +,iap,eWlylrzhrrtPJi.rvlLgbJ%Lw.u-7-Rat rLwx%.%~~ persons have been presented for filing in the deed records for other reasons 7ertalnlng to the title to real property." In addition you have advised this office that the will In question is also specifically referred to In the affidavit of heirship.
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Hon. Joe Resweber, page 2 (M-511)

Article 6626, Vernon’s Civil Statutes, In part, provides as follows:

“The following instruments of writing which shall have been acknowledged or proved according to law, are authorized to berecorded, viz: all deeds, mortgages, conveyances, deeds of trust, bonds for title, covenants, dlsfeasances or other Instruments of writing concerning any lands or tenements, or goods and chattels, or moveable property of anydescription;

. . .‘I Section 52 of the Probate Code of Texas provides, in part, as follows:

“Section 52. Recorded Instruments as Prima Facie Evidence *

“Any statement of facts concerning the family, history, genealogy, marital status, or the identity of the heirs of adecedent shall be received In a proceeding to declare heirship, or In any suit involving title to real or personal property, as prima facie evidence of the facts therein stated, whensuch statement is contained in either an affidavit or any other instrument legally executed and acknowledged, or anyjudgment of acourt of record, if such affidavit or instrument has been of record for five years or more in the deed records of any county in this state in which such real orpersonal property is located at the time the suit is instituted, or in the deed records of any county of this state in which the decedent hadhis domicile or fixed place of residence at the time of his death. If there is any error in the statement of facts in such recorded affidavit or instrument, the true facts maybe proved byanyone Interested in the proceeding In which said affidavit or Instrument Is offered In evidence Q This statute shall be cumulative of all other statutes onthe samesubject, and shall not be construed as abrogating anyright to present evidence concerred by any other statuL or rule of law. Section 94 of the Probate Code of Texas provides as follows:

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Hon, Joe Resweber, page 3 (M-511)

"Except as hereinafter provided with respect to foreign wills, nowill shall be effectual for the purpose of proving title to, or the right to the possession of, anyreal or personal property disposed of bythe will, until such will has been admitted to probate," In the case of Turrentine v, Lasane, 389 S,,W.2d 336 (TexOCiv,App. 1965, nowrit) It hId that twoaffidavits there under consideration relat&g ce%~inegenealogical, family history andheirship facts were at least "instruments of writing. concerning lands' andbeing properly sworn to andacknowledged were authorized to be recorded by the County Clerk,

Weare here confronted with the added question of whether the attaching of anunprobated will as anexhibit thereto renders an otherwise recordable affidavit unrecordable, It is recognized that the attaching of such unprobated will can in no waybe effectual for the purpose of proving title to, or right to possession of, any property, but the sameis often used as apart of anaffidavit of heirshlp to dispel1 anyworries as to what problems might arise if it were later decided to probate the will as amunlment of title under Section 73 of the Probate Code of Texas, or otherwise, It is, therefore. the opinion of this office that the attaching of suchunprobated will as anexhibit to arecordable affidavit andreferred to in said affidavit does not render such affidavit with exhibit unrecordable andyour first question is answered in the affirmative, Your second question concerns the recordability of anunprobated will under any circumstance, the most possible being if it is acknowledged but is presented for recordation not as anexhibit to anaffidavit, Until awill is probated, it is noevidence of title. Milner v. Sims, 171 S..W-784 (Tex,Clv,App. 1919, nowrit), It could forcefully be argued that not being evidence of tltlt it could not qualify as being aninstrument of writing concerning any lands , but more precisely, Article 6626, Vernon's Civil Statutes, allows instruments to be recorded by the County Clerk only if thfy shall 'have been acknowledged or proved according to law The Probate Code of Texas contains manyspecific provisions setting out what fisrequired for awill to have been "proved according to law. These specific provisions, such as Articles 88, 84and59, apply to the probate, or recording of awill as awill; therefore, the general provision of Article 6626 allowing recordation of anacknowledged instrument is not applicable to awill, It should further be pointed out that,

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Hon. Joe Resweber, page 4 (M-511)

even though awill has been "self-proved" Inaccordance with the provisions of Article 59 of the Provate Code of Texas, such self-proving does awaywith only aportion of the proof requirements, viz: "its execution with the formalities and solemnities andunder the circumstances required to makeit avalid will", but In nowayrelieves the applicant of the other proof requirements of the law, set out in Section 88, Therefore, even anunprob,lted "self-proved" will has not been 'proved according to law so as to allow Its recordation, Your second question is, therefore, answered in the negative. SUMMARY Anotherwise recordable affidavit of heirship maybe recorded in the office of the County Clerk even though it has attached thereto an exhibit consisting of anunprobated will. Anunprobated will, not constituting such exhibit to anaffidavit, maynot be recorded in the office of the County Clerk even though it does have anacknowledgment thereon. truly yovrs,

Prepared by Ivan Williams and Harold G. Kennedy Assistant Attorneys General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Rick Fisher Milton Richardson James Quick William J, Craig MEADE F, GRIFFIN Staff Legal Assistant NOLAWHITE First Assistant

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