Easy, just go to the court in the California County in which your loved one lived at the time of their death and ask for a copy because every Will is required by law to be lodge with the court after death. Just kidding, people rarely lodge a Will with the court even though the law requires it. In fact, obtaining a copy of a Trust or Will of your family member is difficult even though every heir-at-law of the decedent is entitled to a copy. What’s the problem here?
Are All Wills Lodged With California Courts?
For starters, Wills are usually only lodged with the court when someone files a petition in court seeking to open probate for the decedent. This is a rarity since most assets pass outside of probate these days. As such, there is no practical need for anyone to lodge the Will with the court, so they don’t. They should, but they don’t. That means you have no way in which to obtain a copy of the Will from the court in most cases.
Obtaining copies of Trusts is even more difficult because there is no requirement to lodge a Trust with the Court. Most Trusts are not required to be recorded with the County Recorder’s office because Trusts are meant to be private documents. Private is great while the settlor is living, but once they die, private becomes a problem.
Under California law, every heir-at-law of the decedent is entitled to certain information, which includes a copy of the Will and Trust. This is true even if that heir is not a beneficiary of the Will and Trust. (See Probate Code section 16061.5.) Unfortunately, if the estate representative refuses to give you a copy, then you must file a petition with the Probate Court seeking an order to compel a copy of the Trust and Will be given to you. The court usually grants this type of petition and you will obtain a copy of the Trust and Will this way, but it takes time and money to do so. That’s the way our Probate system works, you have rights but it is up to you to enforce those rights in court.
Obtaining a Will and Trust Process
To start the process of obtaining a copy of the Trust and Will, you should send the estate representative a written demand to see the documents. This can be as simple as an email to the person holding the documents to provide you with copies. If they refuse or fail to do so, then you must file a petition in court and seek your court order.
It is not uncommon for heirs of an estate to be kept in the dark as to their rights. You will have no idea what your rights to the estate are, if any, until you obtain a copy of the Trust and Will. For that reason, it is important for you to start the process of obtaining copies as soon as possible. Make your written demand to see the documents as quickly as you can. And then file in court if you do not receive the documents.
Unfortunately, there is no way to force someone to give you copies of the Trust or Will without going to court. Either they will comply with your written demand or they will not. Once they demonstrate a refusal to give you copies, you need to take court action.
In an ideal world, parents would give copies of their estate planning documents to all the children so the children have a copy and know what to expect, but this rarely occurs. Most estate planning lawyers frown on sharing the estate planning documents with children while the parents are still alive because the parents may choose to make changes to the plan. But keeping documents secret provides an opportunity for someone to take advantage of the other heirs. Whereas sharing copies will ensure that the right documents are in the right hands when the time comes. And then no one person can cause problems, or destroy estate planning documents, after your death.
