BILL ANALYSIS Ó AB 2080 Page 1 Date of Hearing: March 29, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 2080 (Gallagher) - As Introduced February 17, 2016 PROPOSED CONSENT SUBJECT: ACCESS TO wills: death certificates KEY ISSUE: SHOULD ANYONE WHO OBTAINS AN INFORMATIONAL DEATH CERTIFICATE, AVAILABLE TO THE PUBLIC GENERALLY, AND WHO PAYS THE REQUIRED FEE BE ABLE TO OBTAIN A COPY OF THAT DECEDENT'S WILL LODGED WITH THE COURT? SYNOPSIS The law today is ambiguous as to whether a court must release a copy of a will lodged with that court to the public. A holder of a will is required to submit it to the probate court after learning of the testator's death, but that will is only lodged with the court and not part of the public record. An individual may request a copy of the will by paying a fee and either (1) AB 2080 Page 2 obtaining a court order for its release, which requires an additional court proceeding, along with an expensive filing fee; or (2) presenting the court with a certified copy of a death certificate. However, since today there are two certified death certificates - a regular certified certificate and an "informational" certified certificate -- there is ambiguity about which certified copy of the death certificate is required. This bill, sponsored by the Trusts and Estates Section of the State Bar, removes that ambiguity and permits anyone with a certified copy of the death certificate - whether a regular certified copy or an "informational" certified copy - to obtain a copy of the will. The sponsor argues that this clarification is good public policy because it helps family members, friends and other potential beneficiaries determine whether they have a beneficial interest in the decedent's estate, provides historians and journalists with valuable familial information that could otherwise go undetected, and helps creditors recover small debts in a cost-effective manner. There is no reported opposition. SUMMARY: Requires a court clerk to release a will lodged with the probate court to a person who pays the required fee and provides an "informational" certified copy of the death certificate. Specifically, this bill defines "certified copy of a death certificate" to include an "informational certified copy of a death certificate" so that a court clerk is required to provide a copy of a will lodged with a probate court to anyone who provides an informational certified copy of the death certificate and pays the required fee. EXISTING LAW: 1)Provides that, within 30 days after knowledge of the testator's death, the custodian of a will must deliver the will to the clerk of the superior court in the county in which the estate of the decedent may be administered and mail a copy AB 2080 Page 3 of the will to the person named as the executor in the will. (Probate Code Section 8200 (a). Unless stated otherwise, all further statutory references are to that code.) 2)Provides that the clerk of the court shall release a copy of a will, lodged with the court under #1 above, on receipt of payment of the required fee and either: a) a court order for production of the will; or b) a certified copy of a death certificate of the decedent. (Section 8200 (c).) 3)Provides that the State Registrar, local registrar, or county recorder shall, upon request and payment of the required fee, provide to any applicant a certified copy of a record of birth, death, marriage, or marriage dissolution that is registered with the official. Provides that only an "authorized person" may receive a certified copy of a birth, death or marriage certificate. All others may only receive an "informational certified copy" of the record, which must contain the following: "INFORMATIONAL, NOT A VALID DOCUMENT TO ESTABLISH IDENTITY." (Health and Safety Code Sections 103525, 103526.) 4)Defines an "authorized person" who may receive a certified copy of a birth, death, marriage record, and not an informational certified copy, as: a) The registrant or a parent or legal guardian of the registrant; b) A party entitled to receive the record as a result of a court order; c) A member of a law enforcement agency or another governmental agency who is conducting official business, as provided; d) A child, grandparent, grandchild, sibling, spouse, or domestic partner of the registrant; AB 2080 Page 4 e) An attorney representing the registrant or the registrant's estate; or f) A funeral establishment. (Health and Safety Code Section 103526 (c).) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: The law today is ambiguous as to whether a court must release a copy of a will lodged with that court to the public. A holder of a will is required to submit it to the probate court after learning of the testator's death, but that will is only lodged with the court and not part of the public record. An individual may request a copy of the will by paying a fee and either 1) obtaining a court order for its release, which requires an additional court proceeding, as well as an expensive filing fee; or 2) presenting the court with a certified copy of a death certificate. However, since today there are two certified death certificates - a regular certified certificate and an "informational" certified certificate - there is ambiguity about which certified copy of the death certificate is required. This bill removes that ambiguity and permits anyone with a certified copy of the death certificate - whether a regular certified copy or an "informational" certified copy - to obtain a copy of the will. The process to obtain a copy of a will lodged with the court has changed over time, but, at least since 1994, has generally been widely accessible. Prior to 1994, a court would only provide a copy of a will to someone who first obtained a court order for production of the will and paid the required fee. In 1994, AB 3686 (Horcher), Chap. 806, Stats. 1994, expanded that by allowing anyone with a certified copy of the death certificate and payment of the required fee to obtain the decedent's will lodged with the court. AB 2080 Page 5 In 2002, to prevent identity theft, California created new certified birth and death certificates available only to specified individuals, with "informational certified" copies of those documents available to all others. In November 2001, it was reported that the State had sold the birth records of more than 24 million Californians, which were then posted on the Internet, subjecting millions of Californians to possible identity theft. In response to that, the Legislature passed SB 247 (Speier), Chap. 914, Stats. 2002, which limited access to birth and death records. That bill reduced the ability of criminals to use birth and death certificates for identity theft by providing that only certain individuals, such as close relatives, could obtain a regular certified copy of the requested document. All other copies issued would now bear a prominent disclosure indicating the document should not be used for identification purposes. These two classes of birth and death certificates are known as a "certified copy" (also known as "authorized copy") and an "informational certified copy." The "authorized copy" is only available to an "authorized person," defined to include close family members, attorneys and law enforcement, whereas the "informational certified copy" is available "in all other circumstances." (Health & Safety Code Section 103526 (b).) That is, anyone who cannot otherwise qualify as an "authorized person" is automatically eligible to obtain a copy of an "informational certified copy." The two classes of certified certificates created by SB 247 allow anyone to obtain a copy of the particular certificate. However, an "informational certified copy" has limited use. With the required limiting language on the document, informational certified copies of marriage, birth, or death certificates cannot be used to establish identity such as driver's licenses, social security cards or passports. AB 2080 Page 6 This bill removes the ambiguity in existing law and once again allows anyone to obtain a copy of a will lodged with the court. Today, any person can obtain a will lodged with the court if that person pays the fee and provides a certified copy of the death certificate. This provision has existed in the law since before there were two types of certified death certificates. According to the author, while most courts are providing a will if the requester has either an authorized certified death certificate or an informational certified copy, some courts have recently started to reject those individuals who only have an informational copy of the death certificate. This bill removes the ambiguity and requires that courts provide the will for anyone with either type of certified death certificate. The bill's sponsor, the Trusts & Estates Section, writes that this bill will "avoid inconsistency in the interpretation of section 8200 (c) from one court clerk's office to another (and even from one clerk's office staff member to another) by clarifying that a person bearing either class of death certificate is entitled to a copy of a lodged will." The sponsor also notes that making the will accessible to anyone willing to pay the fee and provide an informational copy of the death certificate is good policy because the law should not hinder family members, friends and other potential beneficiaries from confirming a beneficial interest. Further, wills provide historians and journalists with valuable familial information that could otherwise go undetected. Lastly, creditors with small claims may want to file against a decedent's estate, but the associated costs to obtain a court order to get the will could be greater than the debt, thus discouraging recovery of debts. REGISTERED SUPPORT / OPPOSITION: Support Trusts and Estates Section of the State Bar (sponsor) AB 2080 Page 7 Opposition None on file Analysis Prepared by:Leora Gershenzon and Amanda Hall / JUD. / (916) 319-2334