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Is My Will a Matter of Public Record?

Privacy is always an important consideration when it comes to family and financial matters. This includes estate planning. For example, you may not want the general public—or even certain family members—to know about the specifics of your estate and how you choose to distribute it.

Famously Reclusive Author’s Will Sealed by Court Order

The well-known American author Harper Lee, who wrote To Kill a Mockingbird and its 2015 sequel, Go Set a Watchman, was famous for maintaining her privacy. The publication of Watchman more than five decades after Mockingbird was considered a major literary event. Lee died in February, 2016.

Shortly thereafter, Lee’s estate filed her will and testament in an Alabama probate court. In early March, a probate judge granted the estate’s request to seal the will and all related documents. The judge agreed with the estate that “information contained in the will … pertains to wholly private family matters” and “poses a serious threat of harassment, exploitation, physical intrusion, or other particularized harm to persons identified in those documents.” According to the New York Times, it was not entirely clear whether Lee actually requested her will be sealed, or whether “it was requested based on what her lawyers envisioned as her likely intention.”

Can a Trust Keep Your Estate Private?

Normally, once a will is filed with a probate court, it becomes a matter of public record. This means anyone can request to see the will for any reason. In California, like Alabama, a judicial order is required to seal a will. The Lee case is a notable exception to the general rule favoring public access to court records.

If you are concerned about keeping your estate planning out of public view, you should consider creating a living trust. A trust, unlike a will, is a private agreement between you and a chosen trustee. The trustee is required to manage or distribute your assets as directed by the trust. The trust itself normally does not need to be filed with a probate court. Any assets in the trust are not considered probate assets subject to the terms of your will.

However, a trust is not 100% private. If you transfer real estate to and from a trust, such ownership changes are still a matter of public record. California law also requires the trustee to notify certain people about the trust, such as the beneficiaries you designate. Additionally, if any lawsuit is filed against the trust—say, by a disgruntled relative—the trust may become public record as part of the litigation.

Get Trust Advice from a California Estate Planning Attorney

Privacy concerns are just one reason to consider a living trust as part of your estate planning. A qualified San Diego estate planning lawyer can advise you on all aspects of wills and trusts and the best choice for your situation. Contact the Law Office of Scott C. Soady if you need to speak with a lawyer today.

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