- , 

E k%TTOlRNEY GENERAL. 

OF TEXAS 

November 19, 1.969 

Hon. Joe Resweber 

County Attorney 

Harris County Courthouse 

Houston, Texas 

Opinion No. M-511 

Re: Filing and recording of 

unprobated will in the 

deed records. 

Dear Mr, Resweber: 

In your letter requesting an opinion from this 

office, you ask the following questions: 

"1 _ Can an unprobated will of a deceased 

person, attached as an exhibit to an affidavit 

of heirship, be filed and recorded in the deed 

records of the county clerk? 

"2. Can the un robated will of a deceased 

person be filed in tirecords of the 

county clerk under any circumstances?" 

With regard to these questions, you submit the 

following facts: 

"These two questions have arisen because 

an attorney In Harris County has sought to file 

the original will of a deceased person, attached 

as an exhibit to an affidavit of heirship, along 

with other instruments constituting a family 

agreement to dispense with probate of the will 

filed, . . o The second question arises where 

a will Is offered for recording in the deed 

records which Is not attached to an affidavit 

of helrshlp or other instrument. At other 

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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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I . 

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 be recorded, 

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 any description; . . .‘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 a decedent 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, 

when such statement is contained in either an 

affidavit or any other instrument legally executed 

and acknowledged, or any judgment of a court 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 or personal 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 

had his 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 may be 

proved by anyone Interested in the proceeding 

In which said affidavit or Instrument Is offered 

In evidence Q This statute shall be cumulative 

of all other statutes on the same subject, and 

shall not be construed as abrogating any right 

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, 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," 

In the case of Turrentine v, Lasane, 389 S,,W.2d 

336 (TexOCiv,App. 1965, no writ) It h Id that two affidavits 

there under consideration relat&g ce%~inegenealogical, family 

history and heirship facts were at least "instruments of writing. 

concerning lands' and being properly sworn to and acknowledged 

were authorized to be recorded by the County Clerk, 

We are here confronted with the added question of 

whether the attaching of an unprobated will as an exhibit thereto 

renders an otherwise recordable affidavit unrecordable, It is 

recognized that the attaching of such unprobated will can in no 

way be effectual for the purpose of proving title to, or right 

to possession of, any property, but the same is often used as 

a part of an affidavit of heirshlp to dispel1 any worries as 

to what problems might arise if it were later decided to probate the will as a munlment 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 such unprobated 

will as an exhibit to a recordable affidavit and referred to 

in said affidavit does not render such affidavit with exhibit 

unrecordable and your first question is answered in the affirmative, 

Your second question concerns the recordability of 

an unprobated will under any circumstance, the most possible 

being if it is acknowledged but is presented for recordation 

not as an exhibit to an affidavit, Until a will is probated, 

it is no evidence of title. Milner v. Sims, 171 S..W- 784 

(Tex,Clv,App. 1919, no writ), It could forcefully be argued 

that not being evidence of tltlt it could not qualify as 

being an instrument 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 many specific provisions 

setting out what fis required for a will to have been "proved 

according to law. These specific provisions, such as Articles 

88, 84 and 59, apply to the probate, or recording of a will as 

a will; therefore, the general provision of Article 6626 

allowing recordation of an acknowledged instrument is not 

applicable to a will, It should further be pointed out that, 

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(I . 

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

even though a will has been "self-proved" In accordance with 

the provisions of Article 59 of the Provate Code of Texas, such 

self-proving does away with only a portion of the proof requirements, viz: "its execution with the formalities and solemnities 

and under the circumstances required to make it a valid will", 

but In no way relieves the applicant of the other proof requirements of the law, set out in Section 88, Therefore, even an unprob,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 

An otherwise recordable affidavit of heirship 

may be recorded in the office of the County Clerk 

even though it has attached thereto an exhibit 

consisting of an unprobated will. An unprobated 

will, not constituting such exhibit to an affidavit, 

may not be recorded in the office of the County 

Clerk even though it does have an acknowledgment 

thereon. 

truly yovrs, 

Prepared by Ivan Williams and 

Harold G. Kennedy 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Rick Fisher 

Milton Richardson 

James Quick 

William J, Craig 

MEADE F, GRIFFIN 

Staff Legal Assistant 

NOLA WHITE 

First Assistant 

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