Even if there is a Trust, the Original Last Will and Testament matters. The Original Last Will and Testament is important because under California Probate Code section 8200 the custodian of the Will is required to lodge the Original Will with the Clerk of the Court within 30 days. In this context, the legal term of lodging means to deliver to the Clerk of the Court a document that is not filing a legal action for safekeeping.
This means that if you are in possession of the Original Last Will and Testament, you have an obligation under California law to provide it to the court where the person who dies resided within 30 days after that person’s death. However, the person in possession of only a copy of the Will and not the original cannot lodge the copy of the Will with the court for safekeeping.
The custodian of Original Last Will and Testament who fails to comply with lodging the Original Last Will and Testament shall be liable for all damages sustained by any person injured by their failure. The issue is if someone who has a right to estate is not made aware of the distribution and the Original Last Will and Testament is intentionally withheld.
If you as the nominated executor are unaware of the possession or location of the Original Last Will and Testament, then it is impossible to lodge it with the Court.
It is always recommended that an executor and successor trustee conduct all reasonable efforts to locate the deceased’s Original Last Will and Testament. By keeping track of all efforts made to locate the Original Last Will and Testament, then you can limit liability beneficiaries and heirs may have with regards to their distribution rights.
Ms. Moghtaderi is an estate planning attorney based out of Irvine, California.