Q: How can I get a copy of a will? I believe I was named in my mother’s will but I can’t find a copy. Mom passed away recently and my sister has been transferring Mom’s property into her own name.
A: We hear variations on this question surprisingly often. Usually, there is nothing mysterious going on. Check with the probate court in the county where your mother was living when she died. If a will was filed or a probate was opened, that is where it should be, and the clerk will be able to find it using your mother’s name and date of death.
In many cases, nothing will be on file with the court. This is probably not a sign of any kind of misconduct. Perhaps your mom never got around to writing a will. Maybe she put her property in a trust, so probate is not necessary. Even if there is a will, there may not be enough assets to justify a formal probate, or it might not have been located yet. And, occasionally, people do hide or destroy wills.
Finding the will: If your sister is handling your mother’s debts and assets, you can ask her if she has located the will or trust documents. If not, check with your mother’s attorney. Search her home or office file cabinets and desks. Contact any banks she used, to find out if she had a safe-deposit box there. Banks will usually let family members open a safe-deposit box in the presence of a bank officer to search for a will or burial instructions, although nothing else may be removed. Be sure to bring a copy of the death certificate.
If you believe that your sister has (or had) the will and is refusing to give you a copy or file with the court, you can petition the court to order her to produce it under California Probate Code Section 8201. There is no preprinted form for this, so you would need to either hire an attorney or come in to the law library and do some research. We have samples of this form that you can customize.
If you do find a will, you can start a probate case. In the case, you (or someone) will have to tally up all of your mother’s assets and debts, settle the debts, and then divide the remainder between the beneficiaries of the will, all under the court’s supervision.
What if there is a trust? If your mother set up a trust, there may never be a probate case. However, the trustee would be required to give you notice of the trust, even if you are not named in it, since you are one of the children. (California Probate Code Sections 16060.5-16061.8.) Therefore, if there is a trust, you should receive information about it, including your right to a copy of the documents. If you don’t get notice, you can sue the trustee for any damages you suffer as a result (including attorney's fees).
What if there is neither a will nor a trust? If there is no trust or will, your mother’s property goes to her surviving spouse or domestic partner. If none, her property should be divided equally between her children under California Probate Code Sections 6400-6414. If that doesn’t happen, you can start a case in probate court to enforce your right to your portion. Again, if you decide to go this route, you would need to either hire an attorney or come in to the law library and do some research.
Do keep in mind that any court action will take a lot of time, energy, and money. Unless your mother’s estate (after subtracting any debts) is fairly big, it may not be worth investing time and money, but that is up to you.
Try just talking to your sister first. She may be transferring money to make it easier to pay off debts and wind up your mother’s affairs, and may not realize that she needs to keep you better in the loop. If you still aren’t satisfied, you can decide whether to take that next step of filing in court.
Do you have a question for the County Law Librarian? Just email [email protected]. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.