California Probate Code §8200(a) requires that the Custodian of the Will lodge the Will within 30 days of learning of a decedent’s death. Section8200(b) makes the Custodian of the Will who fails to lodge the Will “liable for all damages sustained by any person injured by the failure.”
The requirement to lodge the Will has been with us for a long time. But, the filing fee is a new fundraiser for the court.
This has started a discussion with no established answers. Cases will come down and you will have to make some determinations based on your interpretation.
Probate Code §§734 and 8200 read as follows:
Probate Code §734:
(a) In cases not governed by subdivision (b) or (c), after the death of the depositor an attorney may terminate a deposit by personal delivery of the document to the depositor’s personal representative.
(b) If the document is a will and the attorney has actual notice that the depositor has died but does not have actual notice that a personal representative has been appointed for the depositor, an attorney may terminate a deposit only as provided in Section 8200.
(c) If the document is a trust, after the death of the depositor an attorney may terminate a deposit by personal delivery of the document either to the depositor’s personal representative or to the trustee named in the document.
Probate Code §8200:
(a) 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, 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.
(b) A custodian of a will who fails to comply with the requirements of this section is liable for all damages sustained by any person injured by the failure.
(c) The clerk shall release a copy of a will delivered under this section for attachment to a petition for probate of the will or otherwise on receipt of payment of the required fee and either a court order for production of the will or a certified copy of a death certificate of the decedent.
(d) The fee for delivering a will to the clerk of the superior court pursuant to paragraph (1) of subdivision (a) shall be as provided in Section 70626 of the Government Code. If an estate is commenced for the dependent named in the will, the fee for any will delivered pursuant to paragraph (1) of subdivision (a) shall be reimbursable from the estate as an expense of administration.
One person shared, “My practice is to lodge any original document purporting to be a Will. Even if a Will appears to have been revoked, the later Will might be held invalid. If the prior Will is lodged, the record will be clear.”
Another person replied:
I would argue that after a Will has been revoked, it is no longer a Will; it is just a set of papers. I would not believe the statute requires that it be lodged. When it was free to lodge a bunch of documents, [the opinion stated above] would be a safe one (although maybe the testator would have preferred the older, revoked Will never be made public).
Now that a fee is imposed, I will choose to lodge only the “Last” Will, since I interpret that it is the only Will. Of course, I will also lodge all Codicils. (By the way, if they are going to impose a $50 fee for each of those too, we are well advised to draft whole new Wills for clients, even for the smallest of changes. Well, no . . . not necessarily.)
If at some stage, that fresher, lodged Will is tossed out on grounds of incapacity etc. and the earlier Will springs back into existence as the new “Last” Will (under the principle of Dependent Relative Revocation), then I would lodge that one at that stage, since I would then have knowledge of my possession of that Will. The date of my knowledge that those papers constitute a Will would be from the date of my knowledge of the Court Order that rules the fresher Will invalid (and thus the revocation clause thereof also invalid).
And yet another observes:
Other than the new $50 filing fee, the issues you have raised have always been there. The amendment is merely a revenue enhancer. The risk to the custodian under 8200(b) is if a Will prior in time is offered for probate due to lack of knowledge of the later non-lodged Will. If you have custody of the originals of all the recent Wills, I am not sure what the damages would be.
So, the question might be, if you have a later Will, why file and pay fees for earlier Wills unless the later one is set aside?
Study the issue for yourself before you decide what you are required to do.
John T. Anderson, Section Chair
Certified Specialist in Probate, Trust and Estate Planning
By the California State Bar Board of Legal Specialization