You Can’t Keep a (Will) Secret!

Category: Will Contests, Trust Disputes & Probate Administration

Can you keep a secret…? If so, how long?  

For the answer to the above questions, please read the below blog written by Attorney Kenneth Silver to see why you shouldn’t

One of the most common questions people ask after the death of a family member is “how long do I have before I have to present the will”. The reasons for the question vary from “I know there’s a will, but I can’t find it” to “my sister has it and she won’t do anything” to “I’m just not ready to deal with this”. A will is a very private document. Once prepared, it’s a common desire to keep the document squirreled away in a locked drawer or safe deposit box. Its common for several months to pass before someone comes forward with a will. But once an individual dies, Section 2516 of the Estates and Protected Individuals Code, (known as EPIC) requires that the document be provided to the court, it cannot be kept secret.

Once filed with the court, all interested persons must be notified. An interested person includes heirs at law as well as the beneficiaries identified in the will. These two categories are not the same thing. Heirs are those who are entitled to inherit if there was no will, usually a spouse and children or if none, the next closest relative(s). Interested persons are the heirs plus the beneficiaries and the individual who is nominated to administer the probate estate. There are others who may need to be notified depending on circumstances and the rules are very specific as to who is entitled to get notice.

The law as to the time for presentation is less clear. There is no specific time limit to find or present a will. In general, one need not suffer anxiety about when to present a will. In just about any case, presenting a will within 3-4 months of death would be considered “reasonable”. Courts tend to be sympathetic in this area. But if found, the will must be forwarded to the court within a “reasonable” time. The determination of what constitutes a reasonable time is a function of specific facts and circumstances. The greater the need to address issues in probate, the greater the likelihood that waiting is unreasonable. For example, it may not really matter how long the sole beneficiary waits to present a decedent’s will. No one else is affected. But if others, whether they are beneficiaries, creditors, or those who were doing business with the decedent, would be negatively affected by holding onto the document, a shorter time would be viewed as “reasonable”.

If someone willfully holds on to a will for an unreasonable time without justification, then that person is liable for damages sustained by reason of the neglect. The damages one could suffer by reason of the neglect could include the costs (attorney fees) incurred in forcing the presentation of the will or lost profits with respect to assets not probated. There are not many reported cases on this point. In my experience the recalcitrant custodian of a will can generally be compelled to come forward with a strongly worded attorney letter citing the correct statute. But in all cases, the person in possession of the will must come forward with the document. After death, the document is no longer a secret.

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