After a person’s death, you should make a reasonable search for their will or other estate planning documents. Our society allows every person to leave their property exactly how they see fit, subject to some limitations set by public policy and community property laws. The goal of the probate court is to carry out the wishes of the decedent, so the prospective personal representative should always make a diligent search for wills, trusts, or other documents the decedent might have in their possession when they died.
Where should you look? The decedent’s home is the first place to start. Check filing cabinets, safes, bookshelves, desks, and any other places where important documents might be stored. People do funny things with their estate planning documents, like hiding them. You don’t have to dig holes in their backyards for buried repositories, but search in the likely places. If nothing is found in their home, find out if they had a safe deposit box. If so, you may need a court order to gain access to the safe deposit box to see if a will or trust was kept there. Did the decedent have an attorney? The attorney should definitely be contacted to see if he or she drafted any estate planning documents for the decedent, and whether they are storing those documents at their office.
Wills are public documents, so if you find a will, it must be lodged with the court. It will have to be lodged in the court located in the county in which the decedent was residing at the time of their death. Did you find more than one will? You have to lodge them all! It’s not up to you to decide which will is valid, and which is not. You don’t have to offer a will for probate, but if the will is in your possession, it must be lodged with the court. Some people execute half a dozen wills during their lifetime, or even in the last few years of their life! They are all public, and all must be lodged.
The will must be lodged within 30 days of the death of the decedent. Cal. Prob. Code § 8200(a)(1). It can also be mailed to the court by registered or certified mail. A copy of the will must also be mailed to the person named as executor in the will. Cal. Prob. Code § 8200(a)(2). There is a $50 fee to lodge a copy of the will. Cal. Govt. Code § 70626.
As a will custodian, don’t delay in meeting your responsibilities. If someone suffers damages caused by your failure to lodge the will, you could be personally liable for their damages. Cal. Prob. Code § 8200(c). If you have questions about your legal options regarding wills or trusts, contact us.