By Mary Lou Floyd, CCLS
For informational purposes only – always check your local court rules and any other resources for the proper procedure
I had the honor to assist a client, “Josie,” who needed to obtain a death certificate for her husband. Sounds easy enough, until you hear her story.
There was no body, no coroner’s report, and therefore no death certificate.
Josie’s husband was kidnapped from their home in Mexico. They have dual citizenship and own a home here in California and in Mexico.
Three men dressed like “soldiers” and wielding weapons, forced their way into the home. The “soldiers” took her husband outside by force. The men then wanted to take their daughter too, who was 5-years old at the time. Josie was brave enough and strong enough to hold tight to her daughter. The “soldiers” who had forced their way into the home were unable to take the young girl away from her. The “soldiers” left in a white van – and her husband was gone.
Josie reported the kidnapping to the FBI and the local authorities. The FBI advised her to leave Mexico immediately for fear of retaliation. Josie left that very night after taking care of the most urgent tasks to enable her to leave.
It took Josie five years to obtain the investigative report from the authorities in Mexico. Because the investigative report was in Spanish, she had to pay to have it officially translated.
Josie had to wait over seven years to begin the legal process here in California. Her husband had retired from a very well-paying job here in the Bay Area and she had not worked outside the home during their 30-year marriage. During this time, she couldn’t access any of her husband’s social security benefits, nor his pension or 401k.
Evidence Code section 667 states that a person not heard from in five years is presumed to be dead. Unfortunately, for Social Security and other benefits, the waiting time is seven years.
FORMS TO PREPARE:
- Petition to Establish Fact, Time, and Place of Death BMD-003 (Judicial Council Form)
- Declaration in Support of Petition to Establish Fact, Time, and Place of Death BMD-003A (Judicial Council Form)
- Declaration (if applicable) MC-031 (Judicial Council Form)
- Order Establishing Fact of Death Form VS 109 (from State of California, Department of Public Health, Office of Vital Records) – Page 2 of the Court Order Delayed Registration of Death
- Police Report
- Witness declaration(s)
- FBI report (if applicable)
- Any other law enforcement agency reports
- Marriage Certificate (if surviving spouse)
FILING DOCUMENTS WITH THE COURT:
Check your local court rules or call the court clerk to find out the procedure for filing this type of petition. This type of matter falls under Probate. The clerk who assisted Josie was not familiar with this type of filing and had to get assistance from a senior clerk. The senior clerk was excited to see this type of filing and be able to train another clerk on who to process this type of petition.
Health & Safety Code section 103465 states the court will set a hearing “not less than five nor more than 10 days after the filing of the petition. In this case, the hearing was scheduled for February 14th.
THE COURT HEARING:
The judge began the proceedings by offering her condolences. The judge then confirmed the facts in the petition. The Order was issued by the clerk. The Order was then filed with the court clerk and certified copies were issued.
Each court differs in their procedures. The Court I dealt with did not handle any other paperwork for Josie. Some courts will send the Order and other required documents to the California State Registrar.
I assisted Josie in filling out the California State Application for Certified Death Certificate, the Sworn Statement, and instructed her to get a money order for the appropriate amount. Remember to include the certified copy of the Order Establishing Fact of Death and the Court Order Delayed Registration of Death form.
There is a packet of form was mailed to the California State Registrar and the waiting begins. Processing requests with the California State Registrar for death certificates can take anywhere from 3-12 months. But Josie is happy to have accomplished so much and is so close to getting a long-awaited death certificate for her husband so she can apply for benefits and take care of other legal matters.
Categorized in: General
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