April 10, 2015

Probating a Lost Will

When a person who wrote a will, the testator, passes away the will needs to be lodged with the appropriate probate court in California. If the person was domiciled in California at death, the county of domiciliary has jurisdiction. For example, if the decedent was a domiciliary of Campbell, CA at death, Santa Clara County Superior Court would be the proper venue for the will lodging.  

Naturally, a problem arises when the original will cannot be located. This can result from a number of scenarios, e.g. the testator lost it, the testator accidentally destroyed it or the testator gave the will to a forgetful person, etc. I've heard  attorneys erroneously state that the original will is required to commence probate. However, Probate Code § 8223 holds otherwise.  

Probate Code § 8223 reads: "the petition for probate of a lost or destroyed will shall include a written statement of the testamentary words or their substance. If the will is proved, the provisions of the will shall be set forth in the order admitting the will to probate."

For purposes of illustration, assume that Tom penned a will. He gave the original will to his friend Carl, the sole beneficiary and nominated executor of Tom's estate. Tom was concerned that his overbearing niece, Allison, his heir, would try to pressure him into making her the sole beneficiary of his estate. Tom's attorney also retained a copy, albeit a duplicate copy.

Tom eventually passes away and Allison commences probate. She argues that since no will can be found amongst Tom's possessions at his home, he died intestate, i.e. without a will. Therefore, as next of kin, she should be appointed administrator and sole beneficiary of Carl's estate. Unfortunately Carl was horribly disorganized and simply could not find the will amongst his belongings when he heard that Tom had died. Still, Carl remembered that Tom had hired an attorney to write his will. Carl calls the attorney and explains Tom's passing. Seeing no ethical issue, the attorney agrees to release the will to Carl. He then petitions the court to be appointed executor in light of Probate Code § 8223. That is, even though the original will was essentially lost, the duplicate original was sufficient because Carl convinces the court that he simply misplaced the original will. Carl does this through his own declaration and the declaration of the attorney who wrote Tom's will.