As a probate attorney, one of the most frequent questions I receive is: “How much of my personal business will be made public in probate?” It’s a valid concern, and many people are surprised to learn that probate cases are, by default, part of the public record. This means that the details of your estate can be accessed by anyone, from creditors to nosy neighbors. While certain confidential information—like Social Security numbers, bank account details, and sensitive medical information—remains protected, most other information becomes accessible to the public once your estate goes through probate.
Let’s delve into what is and isn’t public in probate cases, and how you can take steps to avoid probate altogether to keep your estate out of the public eye.
What Becomes Public in Probate?
When someone passes away and their estate goes through probate, the process is essentially a legal proceeding to ensure that the deceased’s assets are distributed in accordance with the law. As part of that process, the court needs to collect a wide range of information, much of which gets filed in the public record.
In general, the following details become public:
- Inventory of Assets: The court needs to know exactly what the deceased owned. Whether it’s real estate, personal property, bank accounts, or valuable possessions, an itemized inventory of the estate is typically required. This inventory becomes part of the public record, and anyone with interest in the estate can access this information. It is generally not a pleading that can be downloaded by just anyone (hence why anyone with an interest in the estate can access it); however interested individuals include creditors and those that may be claiming an interest in the estate. In addition to the inventory, a list of assets may be located on the initial filings as well as the Receipts of Assets that we file with the court when liquid assets are deposited in the Estate’s checking account as part of the marshaling of assets.
- Names of Beneficiaries: If you name beneficiaries in your will, their names will be listed in the public records as part of the probate process. This can create privacy concerns for beneficiaries who may not want their financial affairs disclosed or who may not want it known that they inherited assets.
- The Will: In most cases, the will itself is made public during probate. That means if you leave certain assets to specific people or organizations, those details will be readily accessible.
- Court Filings: Every motion, document, or argument submitted to the court during the probate process becomes part of the public record. This could include disputes over the will, challenges from creditors, distributions, or family conflicts.
This might sound invasive—and for many people, it is. It’s difficult to imagine that after a lifetime of carefully guarding your personal information, it could be exposed simply because of how probate works. Unfortunately, probate is often the only legal process for distributing assets when someone dies without a comprehensive estate plan in place.
What Stays Private?
Not everything becomes public during probate, however. Certain types of information are protected by law and won’t be available to the general public. Here are a few:
- Sensitive Numbers: While the probate process requires the decedent’s Social Security numbers, dates of birth, and other sensitive “numbers” for various filings, this information is kept confidential. It’s not accessible in the public court records.
- Confidential Settlements: If part of the estate involves a confidential legal settlement, that settlement can remain private if it’s been structured properly. However, if settlements are not specifically designated as confidential, the terms could become public.
- Cause of Death: While medical information is generally private, there are some exceptions. For example, death certificates can become part of the probate record in certain jurisdictions, but sensitive medical details and causes of death are typically kept out of public filings.
- Bank Account Numbers: Similar to Social Security numbers, while the court will require an inventory of assets, specific account numbers and financial details are generally kept confidential.
The bottom line is that only the most sensitive and legally protected information remains private. Everything else, from the value of your estate to who gets what, is up for grabs once your estate goes through probate.
Avoiding Public Probate: How Estate Planning Can Help
If the idea of your private financial matters becoming public doesn’t sit well with you, you’re not alone. The good news is that there are ways to prevent your estate from becoming public record. The best strategy to avoid probate and maintain privacy is to create a comprehensive estate plan—one that makes use of legal tools like trusts.
A properly drafted estate plan can bypass probate altogether, meaning your estate won’t become a matter of public record. Here’s how:
Trusts: Your Privacy’s Best Friend
One of the most effective ways to keep your estate out of probate—and therefore out of the public eye—is through the use of trusts. When assets are placed in a trust, they are no longer owned by you in a legal sense; they are owned by the trust, which is managed by a trustee (and depending on the type of trust, you may be the trustee and thus retain control). Upon your death, the assets in the trust pass directly to your named beneficiaries without the need for probate. Because the assets never go through probate, the details of your estate remain private.
Here are some popular types of trusts used to keep assets out of probate:
- Revocable Living Trust: This is one of the most common types of trusts used in estate planning. A revocable living trust allows you to maintain control of your assets while you’re alive, and then after your death, the assets in the trust are distributed to your beneficiaries according to your wishes. Importantly, the assets in a revocable living trust do not go through probate, so they remain private.
- Irrevocable Trust: Once assets are placed in an irrevocable trust, they cannot be changed or revoked (with very few exceptions). Irrevocable trusts are used in more complex estate plans and can offer benefits such as tax savings, asset protection, and, of course, keeping your estate out of the public probate process.
- Specialized Trusts: Depending on your financial situation, there may be other types of trusts that fit your specific needs, such as charitable trusts, spendthrift trusts (to protect heirs from creditors), irrevocable life insurance trusts, or family trusts. Each of these offers privacy benefits by avoiding probate.
Other Probate-Avoidance Strategies
While trusts are the most effective tool for avoiding probate, there are other strategies that can help minimize the amount of your estate that ends up in public court records:
- Joint Ownership: Holding assets like real estate or bank accounts in joint tenancy with right of survivorship means that upon your death, those assets pass directly to the surviving co-owner without the need for probate. Another option is executing an Enhanced Life Estate Deed “ELED” (sometimes referred to as a Lady Bird Deed). While these may be possible strategies, I strongly believe Trusts are much better tools to ensure your property does not end up in probate. With joint ownership and ELED, there always exists the possibility of the property ending up in probate if the last joint owner passes (or all joint owners pass) or with an ELED if the remaindermen (essentially the “beneficiaries” of the property) pre-decease the life tenant.
- Payable-On-Death Accounts: Many financial institutions offer “payable on death” designations for bank accounts and investment accounts. By naming a beneficiary for these accounts, they pass directly to your heir without going through probate. Keep in mind that if the beneficiaries listed predecease you, your account could end up back in probate. This method also may not allow contingent beneficiaries in the event of the passing of one of your beneficiaires.
- Beneficiary Designations: In addition to accounts, you can name beneficiaries for things like life insurance policies and retirement accounts. These assets transfer directly to the named beneficiary and skip probate.
Protect Your Privacy with a Thoughtful Estate Plan
At the end of the day, probate is a necessary legal process designed to ensure that your estate is distributed correctly. However, it comes with the trade-off of making much of your financial and personal information public. If keeping your estate out of the public eye is important to you, then the best way to do that is to create an estate plan that uses trusts and other probate-avoidance strategies.
As a probate attorney, I’ve seen firsthand the importance of a well-structured estate plan. Not only does it help avoid the complications of probate, but it also ensures that your assets are passed on according to your wishes while maintaining the privacy of your family. If you’re concerned about protecting your estate from public scrutiny, I highly recommend discussing your options with an estate planning professional. Trust me, your future heirs will thank you for it.
