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)
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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
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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;
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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.
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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.
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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
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Opposition
None on file
Analysis Prepared by:Leora Gershenzon and Amanda Hall / JUD. /
(916) 319-2334