October 11, 2007

Ask The Lawyer

Duties where one holds another person’s will

This week's question:
My Uncle Charlie went into the hospital three weeks ago for a fairly routine surgery. However, complications developed, and now he is in a coma and may not make it. Before he went to the hospital, he gave me his will for safekeeping. I immediately took it to my bank safety deposit box. If he should die, what do I do with the will? It makes me rather nervous just to think about it.

Kathy K.
Almaden Valley


Dear Kathy:
Sorry to hear about your Uncle Charlie, Kathy, but I am sure you will have no problems in taking good care of his will.

Of course, until further developments arise you will want to continue to keep the will in a very safe place, like your bank box. And it would be a good idea for you to pay a brief visit with your own attorney for legal advice. There is no substitute for that.

You might also want to make a duplicate copy and store it in a secondary location, just in case.

Your own attorney may discuss with you some basic rules concerning the steps involved if you are holding someone’s will and that person dies. These rules are contained in the California Probate Code.

In §8200(a) of the Probate Code states that within 30 days after having knowledge of the death of the testator (will maker), the custodian of the will must deliver the will to the clerk of the superior court of the county in which the estate of the decedent (deceased person) may be administered. The will would need to be filed sooner if a petition for probate of the will is filed.

So, if Uncle Charlie lived in San Jose, you need to take the will to the Probate Department of the Superior Court at 191 North First Street, San Jose, and file it there. There is no fee for this filing. I would also get a stamped copy back with the file number on it so I could prove later that I filed it properly.

Of course, until one passes on, the will is very private and stays with the will maker or his or her duly authorized custodian, such as yourself. No public filing of the will is done until after a death.

Again assuming that Uncle Charlie passes on, you would also need to mail a copy of the will to the person named in the will as executor, if you know of that person’s whereabouts, and if not, to a person named in the will as a beneficiary. This rule is provided in Probate Code §8200(a)(2).

If you follow the above steps, everything should flow smoothly and be all right. If you fail to follow those steps, however, quite serious consequences could happen.

§8200(c) provides that a custodian of a will who fails to comply with the requirements of this section is liable for all damages sustained by any person injured by the failure. Of course, these damages could be huge. For example, if the will was not handled properly, and the house on the 18th fairway at Almaden Country Club went to Uncle Pete instead of Aunt Alice, the custodian of the will could be liable for a $2 million loss and up.

If you are interested in reading these rules for yourself as contained in the California Probate Code, log onto your favorite search engine and head for California statutes and Probate Code provisions. Enter the numbers above and they should be on your computer monitor in a fraction of a second.

And as you always read in this column, please see your own attorney for advice and guidance.

Good luck, Kathy, and best wishes to your Uncle Charlie.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.