BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2080


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          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)









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          Opposition

          None on file

          Analysis Prepared by:Leora Gershenzon and Amanda Hall / JUD. /  
          (916) 319-2334