Many people want their final days and plans to remain private, and this often includes the desire to control who learns about their estate plans. A last will and testament is a vital part of estate planning. Your will is a legal document that lays out your wishes for your estate – including property, assets and any other items of value that you intend to leave to a beneficiary after your death. It contains information such as what a beneficiary’s rights are and who will receive what. The recipients of the property are known as heirs, and they can receive either property, or proceeds from the sale of property.
Given how much personal information is included in a will, we frequently hear from clients asking, is a will a public document?
The short answer is yes, wills are considered public information. In Texas, most probate cases are considered public matters and will appear on public records. This means that, essentially, anyone who is interested in your estate plans can legally see them.
This is pretty appalling for people who wish for their estate plans to remain private. It’s alarming even for those who aren’t concerned with privacy – would you want everyone to see your plans?
Here’s who can see your last will and testament in Texas – and some possible options to consider if you are interested in keeping your private estate plans from becoming public.
In Texas, who can legally view your will?
A personal representative, or Executor, is responsible for distributing (and possibly selling) your property, so they must see your will. Typically, this isn’t a cause for concern for the trustor, as they know this is necessary and will choose someone they trust to be their executor.
When does a will become public record?
Once a will is probated, any member of the public can see it. Additionally, anyone can read the documents in the probate record (unless this record is sealed by a court order), such as a complete inventory of the decedent’s assets. As you can imagine, that represents a lot of personal information – including financial details – that neither you, nor your beneficiaries, would feel comfortable having available to ‘just anyone’.
What are the legal methods for keeping a will private?
If you do go through the probate process, there is a way to prevent your private inventory from becoming public knowledge. You can file an affidavit in lieu of an inventory, asserting that each beneficiary has a copy of the inventory and that all debts are paid.
If you’re looking for even more privacy, you can opt to use a trust. With a trust, you can transfer your property to the trust and assign a trustee (the person that manages the trust’s assets). Instruct the trustee to sell the property according to a predetermined agreement. They will then divide up the proceeds to the beneficiaries, according to your wishes. This approach bypasses the probate process, so your records don’t become public.
However, without expert guidance, setting up a trust can be a difficult and complex process. Should you choose an irrevocable trust or a revocable trust? There’s also a significant amount of important record-keeping involved, and a trust isn’t legally protected from creditors if there are still outstanding debts to be paid. It’s always best to consult a trust attorney when considering this avenue.
If you’re looking for an attorney to help you with your estate planning, contact us at Mike Massey Law. We provide trust and estate planning attorneys in Austin, Houston and surrounding areas. Contact us today.