BILL ANALYSIS                                                                                                                                                                                                    Ó



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 2080 (Gallagher)
          Version: February 17, 2016
          Hearing Date:  June 28, 2016
          Fiscal: Yes
          Urgency: No
          ME   


                                        SUBJECT
                                           
                        Probate of wills:  death certificates

                                      DESCRIPTION 

          This bill would allow anyone to obtain a copy of a decedent's  
          will that has been lodged with the Superior Court. 

                                      BACKGROUND  

          Under current California law, a custodian of a will must deliver  
          the will to the clerk of the superior court in the county in  
          which the estate of the person who died may be administered and  
          to the executor listed in the will within 30 days after knowing  
          about the death.  A person can obtain a copy of the will that  
          was lodged with the superior court by paying a fee and  
          presenting a certified copy of the death certificate to the  
          clerk of the superior court.   Another way a person can obtain a  
          copy of a lodged will is to pay the fee and petition the court  
          for an order allowing the person to obtain a copy of the lodged  
          will.  

          The Legislature narrowed the universe of who can obtain a  
          certified copy of a death certificate in order to protect  
          Californians from identity theft in 2002.  (Speier, Ch. 914,  
          Stats. 2002.)  Since 2002, only authorized persons, including  
          close family members, can receive certified copies of death  
          certificates.  Any other person can obtain an informational  
          certified copy of a death certificate.  An informational  
          certified copy of the death certificate must contain a notice  
          that clearly shows it is "informational" and "not a valid  
          document to establish identity."

          According to the sponsors, some superior court clerks do not  
          accept the informational certified copy of death certificate as  







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          sufficient to obtain a lodged will.  Sponsors point out that  
          when a clerk does not provide the will to a creditor or a remote  
          family member, or anyone else who wishes to see the will, the  
          clerk is acting against the law.   The Sponsors assert that from  
          1982 through 2002 anyone could obtain a certified death  
          certificate and thus anyone could obtain a copy of the will  
          after paying the fee.

          This bill makes it clear that all that is needed to obtain a  
          copy of the lodged will from the clerk is an informational  
          certified copy of the death certificate and the payment of the  
          fee.  This bill will thus allow anyone to easily obtain a copy  
          of a lodged will.

                                CHANGES TO EXISTING LAW
           
           Existing law  requires that a custodian of a will must deliver  
          the will to the clerk of the superior court in the county in  
          which the estate of a decedent may be administered and mail a  
          copy of the will to the person named as the executor in the will  
          within 30 days after knowledge of the testator's death.  (Prob.  
          Code  Sec. 8200(a).)

           Existing law  allows a person to obtain a copy of a lodged will  
          from the clerk if the person presents a certified copy of a  
          death certificate and payment of the required fee or through a  
          petition to the court for an order allowing the applicant to  
          obtain a copy of the lodged will and payment of the required  
          fee. (Prob. Code Sec. 8200(c).)

           Existing law  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.  (Health & Saf. Code Sec.  
          103525, 103526(a)&(b).)

           Existing law  provides that only an authorized person may receive  
          a certified copy of the certificate, including a record of  
          death, while all other people may only receive an informational  
          certified copy of the record which must contain the following  
          notice:  "INFORMATIONAL, NOT A VALID DOCUMENT TO ESTABLISH  
          IDENTITY."  (Health & Saf. Code Sec. 103525, 103526(b).)









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           Existing law  defines an "authorized person" who may receive a  
          certified copy of a birth, death, or marriage record, and not an  
          informational certified copy, as any of the following: 
                 the registrant or a parent or legal guardian of the  
               registrant; 
                 a party entitled to receive the record as a result of a  
               court order; 
                 a member of a law enforcement agency or another  
               governmental agency who is conducting official business, as  
               provided; 
                 a child, grandparent, grandchild, sibling, spouse, or  
               domestic partner of the registrant; 
                 an attorney representing the registrant or the  
               registrant's estate; or a funeral establishment.
                 an agent or employee of a funeral establishment who acts  
               within the course and scope of his or her employment and  
               who orders death certificates on behalf of individuals, as  
               specified.  (Health & Saf. Code Sec. 103526(c).)


           This bill  provides that any person may obtain a lodged will from  
          the superior court clerk if they pay the required fee and  
          provide an informational certified copy of the death  
          certificate.
          
                                        COMMENT
           
          1.   Stated need for the bill
           
          According to the author:

             [Probate Code] Section 8200(c) essentially creates two  
             avenues for an applicant to obtain a copy of a lodged will  
             from the clerk.  The faster and less expensive route is  
             the presentation of a certified copy of a death  
             certificate.  If the certified copy is not accepted, the  
             applicant will have to petition the court for an order  
             allowing the applicant to obtain a copy of the lodged  
             will, resulting in the payment of a filing fee as well as  
             attorney's fees.  It is noteworthy that section 8200(c)  
             does not provide any standard by which courts are to  
             assess the merits of petitions to release copies of lodged  
             wills.









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             This bill would confirm the access to lodged wills that  
             the Legislature approved through AB 3686 in 1994 when it  
             amended Probate Code section 8200(c).  At the time, there  
             was only one class of death certificates, anyone could  
             obtain a certified copy of a death certificate for a  
             modest fee, and the certificate bearer could obtain a copy  
             of the decedent's lodged will from the court clerk.

             In 2002, the Legislature enacted Health and Safety Code  
             section 103526, creating two classes of certified copies  
             of death certificates: "informational" copies available to  
             all applicants and "authorized" copies available only to  
             certain categories of applicants (close family members,  
             law enforcement agents, etc.).  (Sen. Bill No. 247  
             (2001-2002 Reg. Sess.).)  The signatures on an  
             "informational" death certificate are electronically  
             redacted and the certificate displays the legend:   
             "INFORMATIONAL, NOT A VALID DOCUMENT TO ESTABLISH  
             IDENTITY."  (Health & Saf. Code [Sec.] 103526, subds.  
             (b)(1), (f).)  Otherwise, the "informational" copy and the  
             "authorized" copy are identical.

             "Informational" copies are reliable because they must be  
             printed from the single statewide database prepared by the  
             State Registrar.  (Health & Saf. Code [Sec.] 103526, subd.  
             (f).)
             . . .
             Some stakeholders advocated for stricter controls on  
             access to birth and death certificates, such as  
             restricting access to only persons named in the  
             certificates.  But, after hearing concerns from legitimate  
             users of certificates who were not named in the  
             legislation as authorized persons, the author of Senate  
             Bill 247 decided to retain unlimited access to certified  
             copies for any lawful application.  (Sen. Judiciary Com.,  
             Bill Analysis of SB 247 (2001-2002 Reg. Sess.) Jan. 15,  
             2002, pp. 3-4.)  
             . . .
             Accordingly, an informational certified copy of a death  
             certificate is intended for all legitimate uses except  
             identification.  (Health & Saf. Code [Sec.] 103526, subd.  
             (b)(1).)  As DPH states: "Authorized and informational  
             copies are both 'certified copies.'"  
             (See [as of June  
             7, 2014].)  Likewise, a DPH publication, dated January 1,  
             2014, and entitled "How to Obtain Certified Copies of  
             Death Records," explains: "There are two types of  
             certified copies available upon request" and unequivocally  
             provides that "[b]oth types of documents are certified  
             copies of the original document on file with our office."

             When Senate Bill 247 was enacted in 2002, the Legislature  
             did not refine its prior use of the term "certified copy  
             of a death certificate" in Probate Code section 8200(c),  
             thus resulting in the present ambiguity.  This bill would  
             remove that ambiguity.

             The clerk's office of the Los Angeles Superior Court,  
             however, has taken the informal position, not set forth in  
             any local rule, that an "authorized" copy of a death  
             certificate is required to obtain a copy of a will without  
             a court order under section 8200(c).

             This bill would 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.

          2.   Privacy Concerns
           
          In 2002, the Legislature enacted Health and Safety Code Section  
          103526, creating two classes of certified copies of death  
          certificates: "informational" copies available to all applicants  
          and "authorized" copies available only to certain categories of  
          applicants (close family members, law enforcement agents,  
          executors, etc.).  (SB 247, Speier, Ch. 914, Stats. 2002)   
          Privacy concerns were the motivation behind ceasing the policy  
          of allowing any person to obtain certified copies of death  
          certificates.  Staff notes that SB 247 preserved the ability of  
          close relatives to obtain easy access to certified copies of  
          death certificates and thus wills lodged with the superior  
          courts.   However, friends, creditors, more remote relatives,  
          and strangers can only gain access to the informational  
          certified copies of death certificates.   If superior court  
          clerks are in fact denying copies of lodged wills when presented  








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          with informational certified copies of death certificates, this  
          practice better respects the privacy of the decedent and their  
          family than the practice of providing wills to anyone.  Wills  
          may contain very personal information, including information  
          about who a decedent had close relationships with and  
          information about all assets owned by the person.  It is more  
          protective of the privacy of the decedent and his or her family  
          members to not allow a stranger to access the will as easily as  
          a close family member or executor.

          Sponsors of this bill assert that, unlike a Trust, there is no  
          reasonable expectation of privacy in creating a will because its  
          sole purpose is to be probated and as such to be part of a  
          public proceeding.  Sponsors also note that the persons or  
          organizations who suspect they may be named as beneficiaries in  
          a will may request a copy of the will from the executor and that  
          the "executor may refuse, for one reason or another, to provide  
          a copy of the will directly to the requesting party."    

          2.   Another legislative solution may be more appropriate
           
          The author's justification for changing the statute is that the  
          clerk's office of the Los Angeles Superior Court "has taken the  
          informal position, not set forth in any local rule, that an  
          'authorized' copy of a death certificate is required to obtain a  
          copy of a will without a court order under section 8200(c)."   
          According to the sponsors, the general reference to a "certified  
          copy" of a death certificate in the language of existing section  
          8200(c) results in divergent approaches across California's 58  
          counties.  The committee requested evidence of the divergent  
          approaches across California and received the following response  
          from sponsor's subject matter expert:

             Sacramento County accepts either "authorized" or  
             "informational" certified copies, per the director of the  
             court's family law and probate division.  San Joaquin  
             accepts both types of death certificates, though  
             "informational" certificates are presented only  
             occasionally, per the court's supervising probate  
             attorney.  Likewise, Napa instructs its deputy clerks that  
             the copy need only be certified, without distinguishing  
             between an "authorized" and "informational" certified  
             copy.  The approach in Santa Clara seems to be the same as  
             Napa: according to the records department, the death  








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             certificate must be "certified," with no further  
             specification provided.

             On the other hand, the following county clerks have  
             indicated they accept "authorized" copies only, not  
             "informational" copies:  Los Angeles, Nevada, San Luis  
             Obispo and Santa Barbara.  And it was reported to me a  
             year or two ago that Ventura only accepts "authorized"  
             copies.

          The sponsor argues that this bill is merely a clarification of  
          existing law.  However, the information submitted to the  
          Committee suggests that existing law is not clear to the clerks  
          that provide access to lodged wills.  Some clerks provide wills  
          when "informational" copies of death certificates are presented  
          and other clerks require "authorized" copies.  There does not  
          seem to be a dominant interpretation of the statute by the  
          clerks.  Thus, while there does appear to be a need to amend the  
          statute to clear up ambiguities, because of our State's strong  
          public policy in favor of privacy, the Committee may wish to  
          consider clarifying the law to be more protective of the privacy  
          of the decedent and the decedent's family and amend this bill to  
          make clear that an "authorized" copy of a death certificate is  
          required.  This result would be contrary to the author's bill.


           Support  :  Professional Fiduciary Association of California

          Opposition  :  None Known

                                        HISTORY
           
           Source  :  Executive Committee of the Trusts & Estates Section of  
          the State Bar (TEXCOM)

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          SB 247 (Speier, Ch. 914, Stats. 2002) See Background and  
          Comments

           Prior Vote  :









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          Assembly Floor (Ayes 76, Noes 0)
          Assembly Appropriations Committee (Ayes 18, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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