Who’s Got the Will?

In times past, it was common for attorneys who created wills to keep the original document. Upon being notified of a death of the testator (the person making the will), the attorney would call all of the beneficiaries and heirs of the deceased person into his or her office and read the will with much pomp and circumstance. I’m sure you can recall the scene from some movie since the reading of the will can be the making for a good drama. Depending on what the will said, responses of the persons present might range from shock to elation. In today’s world, however, the formal reading of the will doesn’t happen very often.

When Michael Jackson passed away, one of the first inquiries was concerning his estate plan. Many people were asking “who’s got the will?” because, of course, they had to locate the will in order to find out what it said about the inheritance of MJ’s estate. Under California law, the custodian of a will shall, within 30 days after having knowledge of the death of the testator (the person creating the will), both (1) lodge the will with the clerk of the superior court of the county which would have jurisdiction over a probate proceeding for the decedent, and (2) mail a copy of the will to the person named in the will as executor or, if the executor’s whereabouts are unknown, to a beneficiary. MJ’s will was promptly produced by the custodian, which turned out to be one of his attorneys.

Today, it is very common for attorneys preparing wills to give the originals to the testator. People are much more mobile and storage costs are high. When a person dies and no probate proceeding is commenced, many wills are not lodged with the court simply because the custodian doesn’t know that he or she must do so. Since the only penalty associated with the failure to lodge the will is the liability of the custodian for all damages sustained by any person injured by the failure, usually there is “no harm, no foul”. On the other hand, where it is reasonably clear that the will needs to be seen by interested persons, a wise person will offer it up in a timely fashion. © 2012 by Marlene S. Cooper. All rights reserved.