WHAT HAPPENS IN CALIFORNIA IF YOU CANNOT FIND THE WILL?

William Sweeney

A common question that a probate attorney is asked is how to obtain a copy of a last Will and Testament. Locating the Will may be urgent if funeral or burial instructions are contained in the Will or if anatomical gifts or the authority to conduct an autopsy are granted in the Will.

First of all note that you cannot ask to see a copy of a living person's Will - this is because while the person is still alive their Will is considered private personal property and no one has the legal right to demand to see it. And second of all, whether or not you can obtain a copy of a deceased person's Will depends on if the Will exists and, if it does, where is it. If an original Will cannot be found perhaps it has already been filed for probate.

Sometimes the deceased neglects to tell others or the Will's executor where to find the Will in the event of death. This can leave heirs and beneficiaries in a difficult position at a time when they are already grieving. If you have looked in obvious places and have come up empty, try more creative searching.

Usually, family members know whether the decedent left a Will; the Will may be in the deceased's attorney's office or the deceased's files may include a note about where the decedent intended to store the Will. Ask close friends, business associates and other family members who may have acted as witnesses to the Will, and therefore may have some idea about where to look. Even when a Will is known to exist, however, a search for codicils and subsequent Wills is still necessary.

Either a member of the decedent's family or the deceased's attorney or another appropriate person should inquire of the decedent's employer, close personal friends, and any others who are likely to know of the location of a Will or to have possession of a Will or codicil. Inquiry should also be made of banks in which the decedent had an account, or any other business or personal connection, to ascertain the existence of a safe-deposit box, because Wills are often kept there.

How does one gain access to such a box after the person who owned it has died? Under California Probate Code §331 access to decedent's safe deposit box is allowed only as detailed below:

  1. California Probate Code §331 applies only to a safe deposit box in a financial institution held by the decedent in the decedent's sole name, or held by the decedent and others where all are deceased. This probate code section does not affect the rights of a surviving co-holder. Thus, if one's name is on the box, one can achieve access in the same manner as if the decedent had not died.
  2. A person who has a key to the safe deposit box may, before letters testamentary have been issued, obtain access to the safe deposit box only for the purposes specified in California Probate Code §334 by providing the financial institution with both of the following:
    1. Proof of the decedent's death. Proof shall be provided by a certified copy of the decedent's death certificate or by a written statement of death from the coroner, treating physician, or hospital or institution where the decedent died.
    2. Reasonable proof of the identity of the person seeking access. Reasonable proof of identity is provided for the purpose of this paragraph if the requirements of California Probate Code §13104 are satisfied.
      California Probate Code §13104 provides that "(b) Reasonable proof of identity is provided for the purposes of this section if both of the following requirements are satisfied:
      1. The person executing the affidavit or declaration is personally known to the holder.
      2. The person executes the affidavit or declaration in the presence of the holder.
  3. The financial institution has no duty to inquire into the truth of any statement, declaration, certificate, affidavit, or document offered as proof of the decedent's death or proof of identity of the person seeking access.
  4. When the person seeking access has satisfied the requirements above, the financial institution must:
    1. Keep a record of the identity of the person.
    2. Permit the person to open the safe deposit box under the supervision of an officer or employee of the financial institution, and to make an inventory of its contents.
    3. Make a photocopy of all Wills and trust instruments removed from the safe deposit box, and keep the photocopy in the safe deposit box until the contents of the box are removed by the personal representative of the estate or other legally authorized person. The financial institution may charge the person given access a reasonable fee for photocopying.
    4. Permit the person given access to remove instructions for the disposition of the decedent's remains, and, after a photocopy is made, to remove the Wills and trust instruments. Only Wills, trust instruments, and burial instructions can be removed from the box before probate letters are issued.
  5. The above only applies to a person who has a key to the safe deposit box. If the person seeking access does not have a key to the safe deposit box and is not the public administrator, the person must obtain letters testamentary from the court to gain access to the box. In addition, the person given access shall not remove any of the contents of the decedent's safe deposit box. After letters are issued, the personal representative may return for the remaining contents.

The California Secretary of State maintains an international Will registry for Wills executed under California Probate Code §§ 6380-6390 (in compliance with international requirements). If it is possible that the decedent executed an international Will that has not been located, you should check the Secretary of State's records to ascertain whether a Will has been filed with that registry by sending a certified copy of the death certificate with the written request to:

Attn: Secretary of State
Special Filings Unit
P.O. Box 942877
Sacramento, CA 94277-0001
(Telephone: (916) 653-3984)

California does not allow a testator to register his Will with the court before his death. However, after death someone may have already lodged the original Will with the clerk of the Superior Court as required by California Probate Code §8200 which provides that "Unless a petition for probate of the Will is earlier filed, the custodian of a Will shall, within 30 days after having knowledge of the death of the testator (emphasis added), do both of the following:

  1. Deliver the will to the clerk of the superior court of the county in which the estate of the decedent may be administered.
  2. Mail a copy of the will to the person named in the will as executor, if the person's whereabouts is known to the custodian, or if not, to a person named in the will as a beneficiary, if the person's whereabouts is known to the custodian."

What happens if it is not filed and cannot be found? The laws on this are very similar in most states.

If a Will is lost, there's typically a rebuttable presumption that it was destroyed. What this means is that the court will presume that the testator (the creator of the Will) destroyed the Will. However, those who wish to probate the lost Will may introduce evidence that the Will was not destroyed. The sort of evidence that is allowed may vary slightly among different states, but basically the probate court must be satisfied that the Will wasn't destroyed. If the evidence suggests that the Will wasn't destroyed, then it may be admitted to probate.

California Probate Code §6124 has codified the general rule that if an original Will cannot be found it is presumed that it was destroyed:

"6124. If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence."

Such a presumption can be rebutted by introducing evidence of the nonexistence of the presumed fact (e.g., evidence that the Will wasn't destroyed). California Evidence Code §604 provides:

"604. The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption..."

PROVING LOST OR DESTROYED WILL

California Probate Code §8223 permits the proving of a lost or destroyed Will. It requires the petition for the probate of a lost or destroyed Will to summarize the testamentary provisions. However, this may be impossible and California Probate Code §6124 establishes the presumption concerning lost Wills. In other words, if no Will can be located, the decedent died intestate. A photocopy can't take the place of a duplicate original because it is not an original for purposes of California Probate Code §6124, and thus the presumption of revocation of the Will applies. In other words, if you cannot find an original Will or duplicate original (not a photocopy) it is presumed that it was destroyed. (See Lauermann v. Superior Court (2005) 127 CA4th 1327) and California laws regarding intestacy will then apply.

INTESTACY PROCEEDINGS

In the worst case scenario, if you can find no original Will or duplicate original Will, California treats the testator's estate as though the testator died without making one. This is called "dying intestate." In that event, persons who are entitled to take property of the decedent by intestate succession are as follows:

If you are a single person with children and you die without a Will, then your entire estate will go to your children.

If you are single with no children and you die without a Will, your estate will be divided between your parents or 100% to the surviving parent. If both of your parents are deceased, then the estate will be divided among your siblings (or the issue of deceased siblings), if you don't have siblings, then to your nieces and nephew, and so on down the family line.

If you are married with children and pass away without a Will, your ½ of the community property interest will be passed to your spouse at your death. Now your spouse will own 100% of the community property. If you have separate property, the property will be distributed to your spouse and your children as follows:

If you have one child, the separate property will be distributed evenly between your spouse and your child.

If you have more than one child, your spouse will receive 1/3 of your separate property and the remaining two-thirds will be distributed in equal shares to your children (or the issue of deceased children).

If you are married and have no children when you die without a Will, your spouse will receive your half interest in any community property you hold. If you own separate property, your spouse will receive only half of that separately owned property. The other half will generally go to your living heirs, first your parents and then your siblings.

If you are a domestic partner and you die without a Will, trust or other estate plan, your surviving domestic registered partner will inherit a portion of your estate provided that both parties are registered with the California Secretary of State as domestic partners. The portion of the estate your surviving domestic partner will be entitled to will depend on whether you have surviving children or other relatives.

CONCLUSION

If you are trying to probate an estate or administer a trust after death, the process can be confusing. In the process you may not know what to do. That is where I can be of help. I make a difficult and bewildering probate or trust administration process as simple as possible. If you wish to gain more information on California probate or trust administration procedures or if you need the general assistance of a Riverside County or San Bernardino County trust administration or probate lawyer, please contact me for a free consultation. I will spend time with you to answer your questions.

I assist clients in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County and San Diego County. You can reach me by phone at 760-989-4820, by email at [email protected] or through my online contact form.