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                         E   k%TTOlRNEY                   GENERAL.

                                   OF     TEXAS




                              November      19,   1.969



Hon. Joe Resweber                                  Opinion    No. M-511
County Attorney
Harris County Courthouse                           Re:     Filing  and recording    of
Houston, Texas                                             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
          +,iap,e WlylrzhrrtPJi. rvlLgbJ%L w.u-7-R at 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 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 in-
       volving    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        af-
       fidavit    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 pro-
bate 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 affir-
mative,

             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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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 require-
ments, 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 require-
ments of the law, set out in Section            88,   Therefore,    even an un-
prob,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

MEADEF, GRIFFIN
Staff Legal Assistant

NOLA WHITE
First Assistant



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