April 17, 2014

Lodging of a Will - Probate Code §8200

When a testator passes away, i.e. a person who wrote a will, California law requires the custodian of the will to deliver such to the clerk of the superior court of the county where probate may be initiated. Probate Code §8200. For example, if the testator was a domiciliary of Los Gatos, CA, the custodian of the will would lodge it with the Santa Clara County Superior Court at the 191 N 1st Street courthouse in San Jose. 

The custodian could be a relative, neighbor or the testator's attorney. 

The additional requirement of Probate Code §8200 compels the custodian to mail a copy of the will to the executor, if their whereabouts are known, and if the executor's whereabouts are unknown, the custodian is to mail a copy to a beneficiary, if their whereabouts are known.

AB-2166, a proposed bill in the California legislature, seeks to reduce the obligations on the custodian. AB-2166 would amend Probate Code §8200 such that the custodian would only have to comply with one of the above obligations. That is, the custodian would only have to either (1) mail a copy to the executor or beneficiary or (2) lodge the will with the superior court. If the custodian chooses to deliver the will to the executor or beneficiary, the following notice would need to be included in at least 10-point font:

“As the successor custodian of the decedent’s will, you have a duty pursuant to Section 8200 of the Probate Code to deliver the will within 30 days of receipt to the superior court of the county in which the estate of the decedent may be administered. Additionally, if you are not the person named in the will as executor, but know the whereabouts of the person who is named in the will as executor, you are required to mail a copy of the will to the person named as executor.” 

The rationale behind the bill was to make it easier for the will to be filed. If the custodian is not named in the will as either an executor or beneficiary, they still have to pay $50 to the superior court to have the will lodged. Although the probate code expressly permits the custodian to be reimbursed for this expense, probate typically takes 6-12 months to complete. Hence, repayment of the $50 is by no means immediate. This bill would allow the custodian to shift the responsibility of lodging the will to the executor or beneficiary, parties who have a greater financial interest in seeing the will lodged and probated. Yes, humans are motivated by financial considerations. Shocking I know. 

It is probably that this bill will pass given that there is no opposition on file and is sponsored by the Trusts and Estates Section of the State Bar of California. Still, only time will tell if this bill becomes law. So please do not assume that AB-2166 is current law.