About two years ago, we posted a blog describing the first things to do when a friend or family member dies with a will that they entrusted to you. The law has changed since the previous blog and this blog has been updated to reflect that change.
When a friend or family member dies, there are a number of immediate arrangement which must be made, including notifying friends and family, making funeral or service arrangements, arranging for care of pets, collecting the decedent’s mail, informing insurers, notifying Social Security Administration and payors of any pensions, obtaining certified copies of the death certificate, and the list goes on….
There is another step, however, that is often overlooked during this emotional and stressful time. If the decedent entrusted you with his or her will, California law also requires you to find the original will and “lodge” or file the original will with the Clerk of the Superior Court of the County in which the decedent’s estate may be administered and mail a copy of the will to the person named in the will as executor (assuming you are not one and the same person) or, if the executor’s whereabouts are not known, then to an heir or beneficiary listed in the will. This must be done in all cases, even if the will is not to be probated, and it must be done right away.
The reason you need to lodge the will with the court is that California Probate Code Section 8200 makes the “custodian” of the will, defined as the person entrusted with the decedent’s will, liable for all damages to any person injured by the failure to do the above within 30 days of death. Once the will is lodged with the court by the custodian, it becomes a document which allows creditors, heirs, beneficiaries, and others who may have an interest in the decedent’s estate to access the will and make claims. If, for example, the will was not lodged with the court and a creditor finds out about the death after the estate has already been distributed, you, as the custodian, may be liable for damages to that creditor.
It is noteworthy that there is typically a $50 filing fee to lodge the will with the court. However, the same Probate Code allows you to be reimbursed for this fee from the decedent’s estate. So, when someone dies who has entrusted you with his or her will, beyond the immediate arrangements, make sure that you find the original will and take it, along with the $50 payment, to the Clerk of the Superior Court of the county in which the decedent’s estate may be administered, and lodge it with the court (keeping your receipt for later reimbursement). Ultimately, the $50 cost for lodging the will and your time spent doing so is much cheaper in the long run than the liability for damages that comes with not lodging the will.
Anyone facing the above circumstance should contact the Chilina Law Firm or another California attorney who practices in the areas of Probate, Estate Planning, and Trust Administration for further information.
Authored by Gregory J. Chilina and Karen J. Chilina
Chilina Law Firm, a Professional Corporation, is a full-service estate planning, probate, trust administration, business law, and real property law firm that provides a wide-range of advising, transactional, and litigation services to its clients from its office located in Atascadero, California. The firm’s attorneys represent individuals and business entities in an assortment of transactional and litigation matters involving estate planning (including trusts, wills, powers of attorney, and medical directives), probate, trust administration, as well as general business law, contracts, corporate governance, land use, and real property. Chilina Law can be contacted by telephone at (805) 538-5038 or by email at info@chilinalaw.com or visit the Chilina Law Firm at www.chilinalaw.com. Chilina Law Firm is based in Atascadero, California and serves North San Luis Obispo County communities, including Santa Margarita, Atascadero, Templeton, Paso Robles, and San Miguel.
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