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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