BILL ANALYSIS �
AB 2166
Page 1
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2166 (Bonta) - As Introduced: February 20, 2014
PROPOSED CONSENT
SUBJECT : DECEDENTS' ESTATES: ADMINISTRATION: CUSTODIAN OF WILLS
KEY ISSUE : IN ORDER TO ENSURE THAT CUSTODIANS OF ORIGINAL WILLS
ARE NOT RELUCTANT TO SAFEGUARD AND LODGE WILLS WITH THE COURT AS
INTENDED BY THE DECEDENT, SHOULD RESPONSIBILITY FOR PAYING THE
COURT FEE FOR LODGING THE WILL BE SHIFTED IN MOST CASES TO THE
EXECUTOR OR BENEFICIARY OF THE WILL, RATHER THAN THE ORIGINAL
CUSTODIAN?
SYNOPSIS
Under existing law, the custodian of a will-a person chosen by
the testator to safeguard the will until his or her death--is
required to deliver the will to the court (also known as
"lodging the will") upon learning of the testator's death.
Existing law, enacted last year, authorizes the court to collect
a fee (currently $50) for lodging the will, although the fee is
reimbursable if an estate is commenced for the decedent. This
bill, sponsored by the Trusts and Estates Section of the State
Bar, seeks to shift responsibility for paying the lodging fee,
in most cases, from the original custodian to the executor or
beneficiary of the will. Proponents contend this change is
necessary because existing law requiring custodians to pay the
lodging fee will have a chilling effect by making custodians
more reluctant to maintain and safeguard original will
documents. Under the revised procedure proposed by this bill,
the custodian would be permitted to deliver the will to the
named executor or beneficiary of the will, who in turn would
assume responsibility for lodging the will and paying the
associated court fee, among other things. Although the bill
alters procedural obligations of custodians and other persons
between the death of the decedent and lodging of the will, it
does not create any scenario where the will may be lodged
without payment of the fee nor does it otherwise excuse payment
of the lodging fee, both of which might deprive the court of
this source of funding under existing law. The bill has no
known opposition.
AB 2166
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SUMMARY : Revises the delivery procedures that an original or
successor custodian of a will must follow upon death of the
testator, and clarifies that the fee charged to a custodian for
delivering a will to the court clerk is reimbursable from the
estate as an administrative cost. Specifically, this bill :
1)Requires the original custodian of a will, within 30 days
after having knowledge of the testator's death unless a
petition for probate of the will is earlier filed, to do
either of the following:
a) Deliver the will to the person named in the will as
executor if this person's whereabouts is known to the
original custodian or, if not known, to the person named in
the will as a beneficiary, if this person's whereabouts is
known to the original custodian. This delivery shall be
made either by personal service or by mail, and include a
specified notice providing further directions to the
executor of the will.
b) Deliver the will to the clerk of the superior court of
the county in which the estate of the decedent may be
administered, and mail a copy of the will to the person
named in the will as executor, if the person's whereabouts
is known to the custodian, or if not, to a person named in
the will as a beneficiary, if the person's whereabouts is
known to the custodian.
2)Requires the successor custodian of a will who is named in the
will as an executor or beneficiary and who receives the will
with the notification described above, within 30 days of
receipt of the will from the original custodian, deliver the
will to the clerk of the superior court of the county in which
the estate of the decedent may be administered and, if the
successor custodian is a beneficiary, mail a copy of the will
to the person named in the will as executor, if the person's
whereabouts is known to this custodian.
3)Clarifies that any fee incurred for lodging the will with the
court clerk is reimbursable as an administrative expense to
the party that incurred the fee, including an original
custodian of the will and a successor custodian named in the
will as an executor or beneficiary.
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4)Clarifies that existing liability for any custodian of the
will who fails to comply with these requirements also extends
to an executor or beneficiary who receives a will with the
notice specified by this bill.
EXISTING LAW :
1)Requires the custodian of a will, within 30 days after having
knowledge of the testator's death unless a petition for
probate of the will is earlier filed, to do both of the
following:
a) Deliver the will to the clerk of the superior court of
the county in which the estate of the decedent may be
administered.
b) Mail a copy of the will to the person named in the will
as executor, if the person's whereabouts is known to the
custodian, or if not, to a person named in the will as a
beneficiary, if the person's whereabouts is known to the
custodian. (Probate Code Section 8200(a). All further
references are to this code unless otherwise stated.)
1)Provides that a custodian of a will who fails to comply with
the requirements of this section shall be liable for all
damages sustained by any person injured by the failure.
(Section 8200(b).)
2)Requires a court clerk to release a copy of a will, delivered
by the custodian, for attachment to a petition for probate of
the will, or otherwise on receipt of payment of the required
fee and either a court order for production of the will or a
certified copy of a death certificate of the decedent.
(Section 8200(c).)
3)Provides that the fee for any will required to be delivered by
the custodian to the court clerk under these provisions shall
be in the amount specified by Section 70626 of the Government
Code (currently $50). Further provides that if an estate is
commenced for the decedent named in the will, the fee shall be
reimbursable from the estate as an expense of administration.
(Section 8200(d).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
AB 2166
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COMMENTS : This bill, sponsored by the Trusts and Estates
Section of the State Bar, seeks a modest revision to the
procedure to be observed by custodians of wills upon the death
of the testator. Under this bill, instead of being required to
lodge the will with the court, the custodian would instead be
permitted to deliver the will to the named executor or
beneficiary of the will, who in turn would assume responsibility
for lodging the will and paying the associated court fee.
Need for the bill. According to the author, existing law
requiring custodians to pay a fee to the court to lodge the will
may have unintended chilling consequences, even though
reimbursement of the fee from the decedent's estate is
permitted. The author explains: "Requiring custodians to incur
a fee to lodge a will have a chilling effect on their
willingness to hold such original documents, and is likely to
culminate in reluctance by such custodians to maintain and
safeguard wills. The result of this may be fewer wills being
delivered to executors, less wills being lodged with the court,
and fewer creditors having knowledge of a decedent's will."
Background on custodians and lodging of wills . According to
TEXCOM, the Trusts and Estates Section of the State Bar, the
custodian of a will may be a confidante, attorney, or other
trusted advisor of the decedent. The decedent's principal
motivation for entrusting the care of his or her will with a
custodian to ensure its safekeeping until the time of his or her
death. Custodians ensure that executors are informed of the
will and their nomination as executor upon the decedent's death,
and they generally have no beneficial interest of their own in
the decedent's estate. As required by existing law, lodging of
the will with the clerk makes the will a public document and
allows other members of the public, such as creditors, to check
with the county clerk to ascertain the existence of a will.
SB 1021, budget trailer legislation from 2012 (Chapter 41),
authorized a $50 court fee to be charged for lodging a will.
Prior to enactment of SB 1021, existing law prohibited a fee
from being charged for lodging a will.
This bill revises procedure to allow custodians to deliver the
will to an executor or beneficiary, who, in most cases, will
assume responsibility for lodging the will with the court and
paying the corresponding fee. Under the procedural scheme
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outlined by existing law, the custodian of a will is required in
every case to pay the court clerk a fee (currently set by
statute at $50) for delivery of the will (also known as "lodging
the will"), even though the fee is reimbursable if an estate is
commenced for the decedent named in the will. Under the revised
procedure proposed by this bill, however, the person in
possession of the decedent's will (also referred to as the
"original custodian") would be permitted to satisfy his or her
statutory duty by delivering the will to the executor or a
beneficiary for lodging with the court, provided that the
delivery is made by personal service with proof of service or by
mail with return receipt, and that attached to the will is a
specified notice containing further instructions for the
executor or beneficiary acting as the successor custodian of the
will. If the will is delivered to the successor custodian with
the specified attached notice, then the bill requires that
person to lodge the will with the court clerk and, if the person
acting is a beneficiary, to additionally mail a copy of the will
to the person named therein as the executor. In that case, of
course, the successor custodian is responsible for paying the
reimbursable fee, not the original custodian.
This bill does not eliminate any fee that is a source of funding
for the courts. The bill further provides that if, for any
reason, the original custodian did not complete delivery of the
will to the named executor or beneficiary, then he or she shall
instead assume responsibility for lodging the will with the
court (and paying the fee) and for mailing a copy of the will to
the person named as executor. In either set of circumstances,
the bill ensures the executor is notified of the will, the will
is lodged with the court, and a single lodging fee is paid to
the court clerk by the party lodging the will. The bill
clarifies that even under the revised procedure, the fee is to
be considered an administrative expense that is reimbursable
from the decedent's estate.
In short, although the bill alters procedural steps between the
death of the decedent and lodging of the will with the court, it
does not create any scenario where the will may be lodged
without payment of the fee nor does it otherwise excuse payment
of the lodging fee. According to proponents, the bill may
ultimately result in more wills being lodged with the court, by
removing any disincentive that original custodians of wills may
have under existing procedure that requires them to lodge the
will, pay the lodging fee, and possibly seek reimbursement from
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the decedent's estate.
REGISTERED SUPPORT / OPPOSITION :
Support
Trusts and Estates Section of the State Bar (TEXCOM)
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334