Imagine your grandmother had always told you that you would inherit the majority of her assets after she died, but following her death, you didn’t receive any information about her assets or her will. All you received was a notice from your uncle, the personal representative of your grandmother’s estate (i.e., the executor/administrator), stating the date, time and location of the initial probate hearing, or maybe you received nothing at all.
Although you know what your grandmother’s final intentions were, you’re doubtful her will accurately reflects them. In your grandmother’s final days, your uncle, who previously had been estranged from her, suddenly reappeared in her life under the guise of caring for her, and began to gradually isolate her from family and friends. This was the time during which you suspect your uncle exerted undue influence on your grandmother to cause her to change her will.
If your suspicions are true, your grandmother’s will would be invalid on account of it not originating from her own free will. However, your uncle has not complied with your requests for a copy of the will, so you are unable to confirm your suspicions surrounding it. This, by extension, makes it virtually impossible for you to prepare an objection to the will’s admission into the probate process.
This example highlights the importance of securing a copy of the last will and testament of the deceased. As a beneficiary, you are entitled to the inheritance your deceased loved one left you, but without seeing their will, you will be in the dark, not only about what your inheritance entails, but about any errors or wrongful actions that could have affected your inheritance as well.
For the reasons mentioned above, beneficiaries are entitled to a copy of their deceased loved one’s will and should take whatever steps are necessary to secure a copy.
In this article, we’ll delve into the topic of who is entitled to receive a copy of a will and what you can do if the executor is not providing it to you.
Beneficiary Rights Explained
When a person creates a will, they are not doing so for their own benefit. It is for the benefit of — you guessed it — the beneficiaries. As a result, even though you may not be playing a central role in the estate administration process, the process benefits you.
As a beneficiary, you are guaranteed certain rights. These rights not only can keep the personal representative’s powers in check, but they can also help ensure you receive your rightful inheritance at the close of estate administration.
The rights of estate beneficiaries include:
- The right to full and complete copies of the last will and testament
- The right to information about the estate and its administration
- The right to request accountings from the executor/administrator
- The right to sue the executor/administrator if they act improperly
- The right to fair and impartial treatment from the executor/administrator
- The right to receive a distribution according to the terms of the will
Now that you know a beneficiary is entitled to a copy of the will, it’s important to understand at what stage of the administration process the personal representative should provide it to them.
Who Contacts Beneficiaries of a Will?
It’s usually the individual who files the Petition for Probate that’s responsible for contacting the beneficiaries of a will to notify them of the initial probate hearing. This individual is also responsible for contacting the deceased person’s heirs, creditors, and anyone else with a potential interest in the deceased person’s estate.
It’s important to note that casually contacting the beneficiaries and other interested parties is not adequate in fulfilling the notice requirements set forth by California Probate Code section 8100. Someone other than the petitioner must hand-deliver or send via first-class mail a Notice of Petition to Administer Estate at least 15 days prior to the initial probate hearing.
Most commonly, the individual who files the Petition for Probate is the person whom the deceased nominated to serve as the personal representative of their estate. This individual will not be authorized to access estate assets or make estate-related decisions until they are formally appointed to their role as an executor or administrator, although keep in mind that the court is not obligated to appoint the nominee if it believes they are unfit to serve or if the nominee refuses their appointment.
When a petition for probate is granted by the court, the will of the deceased is authenticated. If you are an interested party who has reason to believe the will is invalid, you generally would be entitled to file a formal objection to its admission into probate in advance of the hearing on a petition for probate, or you could appear at the hearing to object to its admission in person.
If a will has already been admitted to probate, how long do you have to contest a will? Interested parties are subject to a strict 120-day time limit to file their will contest, which begins on the date of admission.
That said, a failure on the part of the personal representative to timely notify interested parties about the probate hearing could result in this time limit being extended, which, in turn, could delay when beneficiaries receive their inheritances. For this reason, if an executor did not notify beneficiaries in accordance with Probate Code section 8100 or if an executor is not communicating with beneficiaries, it is crucial for beneficiaries to consult with an experienced probate attorney about how to remedy this issue.
Who Is Entitled to Receive a Copy of a Will?
As we touched on earlier, all interested parties are entitled to receive a copy of the will. This, however, does not mean the personal representative must automatically provide it to them. Rather, interested parties are entitled to request a copy of the will from the personal representative. In turn, the personal representative must comply with their request.
To better understand who is entitled to receive a copy of a will, let’s clarify the definition of interested party in the context of estate administration. An interested party is anyone who has a financial or legal interest in an estate. Because they could be directly impacted by the deceased person’s will, they have a right to receive a copy of it to review.
Interested parties in estate administration include:
- Personal Representative
- Estate beneficiaries
- Heirs at law (i.e., individuals who would inherit had the deceased died without a will)
- Creditors
- Trustee*
- Guardian**
*A trustee would be entitled to a copy of the will only if the deceased person’s trust is involved in estate administration (e.g., if the will is a testamentary trust (i.e., a trust created by a will that is to contain all the estate assets or a portion of them)).
**A guardian would be entitled to a copy of the will only if the minor (called the ward) stands to inherit from the estate.
Although the nominee for personal representative usually files the Petition for Probate, any interested parties, including beneficiaries and creditors, technically have the right to do so. Therefore, if someone other than the nominee for personal representative files for probate, they must take care to notify the nominee for personal representative, even if the nominee doesn’t stand to inherit any assets from the estate.
Heirs at law also are important for the petitioner to notify. These individuals are the deceased person’s family members who would inherit by way of intestate succession if the deceased person’s will were invalidated as a result of a successful will contest or if the deceased person died without a will.
When interested parties are notified according to established rules and procedures, estate administration can progress much more smoothly and efficiently, making it possible for beneficiaries to receive their inheritances faster.
Who Can See a Will After Death?
In an ideal world, the personal representative of the estate would attach a copy of the deceased person’s will to the notices they serve the interested parties, but unfortunately, this isn’t always the case.
The good news is that wills, unlike trusts, are public record in California, which means that once the will is filed as part of a petition for probate, virtually anyone can view or obtain copies of a deceased person’s will, regardless of whether they have an interest in the estate or not. We’ll discuss this more in-depth in a later section.
For now, we’ll go over answers to specific questions we often receive surrounding who can see a will after death.
Are All Beneficiaries Entitled a Copy of the Will?
All named beneficiaries are entitled to a copy of the will from an executor or administrator. In other words, if your name is mentioned in a deceased person’s will, you have a right to a copy of the will.
That said, there sometimes could be errors or ambiguities that make it difficult to work out who the beneficiaries are. For example, if the deceased belonged to a blended family, resulting in having their own set of children as well as a set of stepchildren, it may be difficult to determine whether the stepchildren are beneficiaries if the deceased wrote only the following in their will: “My home should go to my children.”
In complex scenarios like the one above, the assistance of a skilled probate attorney may be required, because if the personal representative were to interpret the ambiguous language themselves, they could be perceived as favoring certain beneficiaries over others, which might be a violation of their fiduciary duties. An attorney, on the other hand, could help the personal representative seek the clarification they need directly from the court using what is known as a Petition to Determine Persons Entitled to Distribution.
Can a Family Member Request a Copy of a Will?
Whether a family member is entitled to a copy of a will depends on their relation to the deceased. For example, if they are the deceased person’s surviving spouse, that would make them an heir at law, meaning they would inherit by intestate succession if the deceased person’s will were invalidated. Heirs at law are entitled to request a copy of the will from the personal representative, regardless of whether they’re named in the will or not.
Conversely, if the family member in question is a distant relative who would not inherit by intestate succession if the will were invalidated, they would not be entitled to request a copy of the will from the personal representative. However, this is not to say they wouldn’t be able to secure a copy from the court. If a probate petition has been filed, it means a will has been lodged with the court and is accessible to the public.
Do Heirs Have a Right to See the Will?
Heirs at law are entitled to a copy of a deceased person’s will; however, distant heirs are not. To put it another way, if you are an heir with priority intestacy rights, you would have the right to request a copy of the will from the personal representative.
Are Wills Public Record in California?
Suppose you are a beneficiary who would like a copy of the will, but the personal representative is taking too long to heed your request or is altogether ignoring it. Or, suppose you are not an interested party. You may be wondering: are wills public record?
A will is public record in California. This means that virtually anyone can access a deceased person’s will with a quick visit to the courthouse in the deceased person’s county of residence. You do not need to be named in the will, related to the deceased or even have personally known them in order to do this.
The reason for this is simple. In order to probate a will, you must file a Petition for Probate and lodge the deceased person’s will with the court, which makes the will public record. The same doesn’t hold true for trusts, because trusts, rather than being subject to probate, are privately administered.
Keep in mind that if you wish to obtain hard copies of a will, the court may charge you a nominal fee for them.
It is important for beneficiaries and other interested parties to thoroughly review a deceased person’s will, preferably before the initial probate hearing but most definitely before the deadline for contesting a will has elapsed. This is the most effective approach for ensuring the instrument is valid and a true reflection of the deceased person’s known final intentions.
If you haven’t received a copy of the will, you will not be able to complete this crucial step, which is why beneficiaries and other interested parties should always make it a priority to secure a copy of the will immediately after a loved one dies.
FAQs: Are Beneficiaries Entitled to a Copy of the Will?
It is vital that beneficiaries understand their rights during estate administration to ensure they receive the inheritance to which they’re entitled.
The sections below provide answers to frequently asked questions surrounding wills, estates and beneficiary rights. If you’re unable to find the answer you’re looking for, we encourage you to reach out to our team to see if your case qualifies for a free consultation with one of our attorneys.
Can a beneficiary override a will?
No, a beneficiary cannot override a will just because they disagree with its terms.
That said, if a will fails to reflect the known final intentions of its creator (e.g., because the will creator lacked capacity when they executed the document or was subject to undue influence), a beneficiary can contest the will to try to have it invalidated.
Can an executor override a beneficiary?
It depends. Although an executor must always prioritize the beneficiaries’ best interests, their primary responsibility is to administer the deceased person’s estate according to the terms of their will. In other words, if a beneficiary takes issue with an executor’s decisions, but the executor’s decisions align with the terms of the will, an executor generally could override the beneficiary.
On the other hand, there are some ways in which an executor cannot override a beneficiary. For example, if a beneficiary requests a copy of the will, they cannot refuse them. In the same vein, if the beneficiary requests an accounting, the executor must provide it to them.
As a general rule, the executor cannot override a beneficiary if doing so would impinge on their rights. However, the executor — depending on whether they have been granted limited or full authority — can make certain unilateral decisions. While involving beneficiaries in the process might cause less conflict, it is not always a requirement for them to do so.
That said, executors do sometimes misuse their authority, so you should not shy away from challenging them if their actions seem suspect. If you have questions, a probate attorney can help you figure out what an executor can and cannot do.
Can a beneficiary witness a will?
A beneficiary can witness the signing of a will, but only if two disinterested witnesses are present as well. This is because Probate Code section 6112 creates a presumption of duress, menace, fraud or undue influence in instances where a beneficiary witnesses the signing of a will without two disinterested witnesses present.
If a beneficiary witnessed the signing of a will without two disinterested witnesses present, it could be argued the will is invalid due to a lack of due execution. It may also be possible to invalidate the beneficiary-witness’s gift in the will based on the presumption described above.
Can a personal representative be a beneficiary of a will?
Although a personal representative being a beneficiary of the will they are tasked with carrying out presents a beneficiary-executor conflict of interest, it not only is permitted under the law, but it’s also quite common.
Having said that, personal representatives who are beneficiaries are still bound to their fiduciary duties, which include a duty of impartiality. In other words, they must treat themselves like they treat the other beneficiaries. They, for instance, couldn’t provide themselves with a loan from the estate if they don’t intend to provide the other beneficiaries with a loan as well. This would be considered executor misconduct.
Personal representatives in this situation must be very careful to do everything by the book, so as to not create problems with the other beneficiaries.
What evidence is needed to contest a will?
The evidence needed to contest a will depends on the grounds for your contest. For example, if you are contesting a will because you believe the deceased lacked the requisite capacity to execute a will, you may wish to obtain the medical records of the deceased and testimony from their doctors to prove they were incapacitated at the time of the will’s execution.
Remember, you cannot contest a will because you disagree with its terms or desire a greater inheritance. You must have legitimate grounds for your contest.
Valid grounds for contesting a will include:
- Undue influence
- Fraud
- Elder financial abuse
- Forgery
- Lack of capacity
- Lack of due execution
- Mistake
- Revocation
If you are unsure whether your case meets one or more of the grounds for contesting a will or you need help amassing evidence to support your case, a probate attorney can serve as an excellent resource.
Is a photocopy of a will valid?
A photocopy of a will is generally only valid if it is a certified copy. If you are a personal representative, you likely will require many certified copies of the deceased person’s will to complete your administrative tasks. For example, you may need a certified copy of the will to access the financial accounts of the deceased. In such an instance, a regular photocopy usually won’t suffice.
Are you still waiting on a copy of a will? We can help.
If you stand to inherit from a deceased person’s estate, but you have not been provided with a copy of the will or any information about your status as a beneficiary, it’s crucial you take steps to learn about your inheritance and protect it before it’s too late.
Where there are standstills, our talented probate attorneys can get the ball rolling. We work with beneficiaries on a regular basis to help them navigate the complex estate administration process and enforce their rights during it.
We are eager to help you find solutions to your legal problems and are standing by to help. Call us today to see if you qualify for a free consultation from our attorneys.
