Deposit, Surrender, What's the Difference?

What Am I Supposed to Do With This Will?

You've finally done it. You've created an estate plan, including a will. Do you have to take it anywhere now or can you just store it at home?

What about if you're in possession of the will of someone who has passed away? Do you have to do anything with the will? 

A will isn't just another special document. For many important documents a copy is as good as an original but when it comes to probate, the original will is far preferable to a copy. It's possible to probate a copy of a will when the original isn't available but doing so involves several additional steps.

When the original can't be located, you must overcome the presumption that the reason the original can't be found is because the person who wrote the will revoked it by destroying it. Probating a copy of a will requires giving notice to family members who would inherit in the absence of a will, inviting a contest if any heir was excluded from the will. At best, probating a copy of a will is more work than probating an original and at worst, the effort may fail.

In summary, the original will is a special document which should be safeguarded to avoid risk of loss or tampering both during life and after death.

Section 252 of the Texas Estates Code speaks about the safekeeping and custody of wills. There are a few important terms to know:

-- A testator is the signer of a will--the person who's providing for the disposition of his/her property at death. You may also see references to a "testatrix," the feminine version of the word, though "testator" is now commonly used for all genders. If it's your will, you're the testator.

The will of a testator can be either deposited or surrendered. Wills are both deposited and surrendered to the county clerk of the testator's county of residence.

Deposit
If the testator is still living, her will can be deposited with the county clerk for a fee of $10. A testator is not required to deposit her will and may choose instead to store it in another secure place, such as a bank safe deposit box or a home safe. Many clients choose to deposit, reasoning that $10 is a small price to pay to avoid the risk of losing the will, but others choose to make their own storage arrangements.

It's important to note that depositing a will doesn't automatically trigger the probate process or have any legal significance. The fact that a will was accepted for deposit isn't a finding that it was validly executed or even that it meets the requirements of a will. It's just about ensuring the document's safe storage.

When you deposit your will with the county clerk (or someone else does so on your behalf), the clerk issues a certificate of will deposit. For clients who choose to deposit, I advise storing the certificate of deposit along with a copy of the will marked "copy" with the rest of the client's estate plan to ensure that family members know that the will has been deposited.

During the testator's life, the county clerk can only release the will to the testator or a person authorized by the testator. When depositing the will the testator may provide contact information for people the clerk should notify of the will's location upon learning of the testator's death.

Surrender
While depositing a will during the testator's lifetime is optional, once the testator dies, the Code states that the person in possession of the original will shall deliver the will to the county clerk. "Shall" is legalese for "must," so surrender is a requirement, not an option. The procedure is similar to that for deposit except that the custodian does not have to pay the $10 fee and the certificate is of "will surrender" rather than "will deposit."

Of note, the surrender requirement is not limited only to wills the family intends to probate, and is not imposed only upon the named executor or beneficiaries. If you're in possession of the original will of a deceased person, you're required to surrender it. If the custodian fails to do so, a court can order him to surrender the will under threat of arrest.

The deposit/surrender distinction is one that can lead to confusion but is easy to summarize. While the testator is living, he can deposit the will for the convenience of storage for a small fee. Once the testator is deceased, the custodian must surrender the will but is not charged to do so.