Why Recording an Estate Plan Often Isn’t a Good Idea
Several years ago, publicly recording Wills or other estate planning instruments was simply the way things were accomplished. Many people automatically assume that the first step after creating an estate plan is file with the court or record the documents. It often is not what should happen.
Preemptively Recording an Estate Plan Does Not Provide Special ProtectionMost courts have determined that placing these documents in the public record doesn’t make them more legitimate than they already are. As long as an estate plan document (such as a Will or Trust) has been signed by the individual, notarized, and properly witnessed, it has the legal standing required. In fact, recording these documents may cause more confusion. Multiple conflicting Wills, recorded in different locations can produce legal contests and other chaos. It is all too easy for this kind of confusion to develop over the course of many years as estate holders change their assets, beneficiaries and/or places of residence.
Privacy can be Affected by Estate Plan Filing or Recording.For many individuals, a document such as a Last Will and Testament is an intensely private statement – at least while they’re still alive. Sometimes these documents contain information that the individual wants kept away from out of the public eye. The Will may become a matter of public record after the estate holder dies if probate is necessary. The details of a Trust, on the other hand, may remain private even after death. A Power of Attorney also remains private unless it is attached to another, publicly-filed document. Optimally, the only people who can review these documents during your lifetime are the individuals with whom you choose to share.
The moment your estate documents are recorded, their privacy becomes very tenuous – especially if the information is shared in digital form on a county recorder’s or court clerk's website. Internet searches can yield a treasure trove of data to unscrupulous people. If keeping prying eyes away from personal documents is a top priority, putting those documents in a position where they’re available for public viewing or downloading is the last thing an individual wants to do.
What are Precautions that Can be Taken?If filing or recording an estate plan is both largely pointless and potentially damaging to one’s privacy, then what kinds of precautions are necessary for securing such documents? Wills, Trusts, and other instruments can be safely stored in a fire-resistant safe at home, with backup copies kept in a safe deposit box. However, it’s absolutely critical that a few trusted individuals know where your estate planning documents are located and how to gain access in case of an emergency.
There is one other person who should be involved in estate plan preparations: a skilled estate attorney. The right legal guidance can help ensure that the estate plan documentation accurately reflects the estate holder’s wishes. This assurance, plus the knowledge that your estate plan information is kept private, will produce greater peace of mind for estate holders and beneficiaries alike.