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Privacy - What Part of Wills Are Public Information?

Posted by attorney Albert Cohen

A last will and testament explains what you want to happen with your assets after your death, appoints guardians for your children, the person responsible for handling financial affairs, known as the personal representative or executor and explains what type of burial you desire. For some people, a will is a very private matter and they keep their wills guarded, sometimes in fire safes or locked boxes. However, once the person who wrote the will dies, a will must be probated, at which time it becomes a matter of public record. Petition for Probate Probate is a legal process handled by the courts that certifies that the will is valid and documents the length of time the will is supervised by probate court. Each state has different rules regarding probate, and even regarding whether a will must be filed at the courthouse prior to when the person dies. Some states do not permit filing a will until the person is deceased, while others require it to be filed prior to death. Each state also has different processes regarding probate as well. In most cases, the personal representative files the will along with a copy of the death certificate at an office in the court house, normally the Register of Wills Office. Normally, states require the will be filed in the last county the decedent lived in before death. If the decedent owned property in other counties or states, a copy of the will may have to be filed in that county as well. (http://info.legalzoom.com/probate-make-public-4666.html) During Probate Once a will is filed in probate court, it is no longer private, and becomes a matter of public record, just like deeds or mortgage information. Anyone who wishes to see a copy of the will, or even obtain a copy, simply visits the courthouse and requests the information. There is no requirement that the person seeking the information have a particular reason or be a family member. However, there are ways to set up your final wishes without using probate court. Trust-Based Estates A revocable trust makes a private contract between you and a trustee, which can be the same as an executor, that only takes effect if you are incapacitated or die. The trust states how property is to be divided, how any cash is to be invested or assets handled, and what your burial choices are. A trust does not have to be filed in probate court, and as long as no one contests the trust, there is no need for court involvement. For those who prefer to keep their family and financial information private, this is a better option than a standard will. However, setting up a trust is more complicated than a simple last will and testament, which means seeking the advice of an attorney is critical. Because a will becomes a court document, once you die, it becomes public information, available to anyone who chooses to request a copy or to simply view the will. Consider a revocable trust if you prefer keeping your financial affairs private.

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