Are Wills Public Record?: Estate Planning Q&A
Wills contain important information about who receives money, possessions, and property upon a person’s death. Who can view this information, and is it a public record?
Once your will goes through probate, it becomes a public record. The probate court must maintain the will so that the public can access it.
Anyone can visit the probate court to view the will, regardless of whether they are an heir or beneficiary. For a fee, they can obtain a copy. In some counties, wills are also available online.
Why Are Wills Public Records?
Numerous individuals could have a right to receive assets from an estate when someone dies. During probate, the deceased’s personal representative, also known as an executor, satisfies debts and distributes assets to beneficiaries.
Sometimes, the probate process overlooks creditors or beneficiaries entitled to a portion of the estate. When this happens, they can bring claims against the estate. They must bring claims within the applicable time limit or statute of limitations, which depends on state law. Public access to wills makes bringing claims easier for those with a right to an estate.
When Do Wills Become Public Records?
Before probate, wills are not yet public records. Individuals often create several wills in their lifetimes as they update their plans; only the final will becomes a public record. In many cases, their estate planning attorney retains the will, or they keep it in a secure location. They might share copies with their loved ones.
The law does not require wills to be public records during the lifetime of the testator (the person making the will). Some jurisdictions allow people to file their wills with the court, yet this practice is uncommon.
When the will becomes public depends on the deceased person’s jurisdiction. To validate a will and begin the process of asset distribution, the personal representative petitions the probate court. In some states, the will and other probate records could be public while the court probates the estate. For many other states, however, the will becomes a public record after the court closes probate.
Probate courts have the power to make wills private. However, this only happens in rare cases under specific circumstances. If a will underwent probate, it is likely a public record available through the court that probated it.
How to Find Out If Someone Has a Will
Talking to your loved ones about where they keep their wills and other estate planning documents is a good idea. Yet, many people are unsure whether their loved one made a will before passing away.
You can find out whether someone has a will by:
- Checking with the probate court in the jurisdiction where the person died
- Searching your loved one’s home
- Consulting with others to determine if an executor is carrying out your loved one’s wishes
How to Find a Will in Public Records
If you are an heir, beneficiary, or creditor to an estate, you might be interested in locating the will.
Since wills become public records after probate, you could find the will by identifying the court that administered probate. If probate has already occurred, this process may be straightforward.
Locating a will can be more challenging when probate has yet to occur. Your loved one might have left their will in a secure location. Check safety deposit boxes. Their attorney might have a copy of the will.
The personal representative must notify you if you are an heir or beneficiary to an estate. The executor must also provide the location of the court overseeing probate. Heirs and beneficiaries are generally entitled to a copy of the will.
Are Trusts Public Record?
Some people might wish to transfer their assets privately. To do this, they can set up a more complex estate plan using trusts. Trusts are generally not part of the public record.
An effective estate plan often consists of more than a will. Consult with your attorney to learn more about making an estate plan.
To learn more, reach out here to the MSW team: Amy Stratton or Kristen Prull Moonan.