Are wills public record? This is a common question that many people have when it comes to estate planning and the administration of estates. The answer is not a straightforward one, as it depends on a few different factors, such as the state in which the will was created and whether or not it has gone through probate. Understanding the rules around wills and public records can be important for those who want to ensure that their wishes are carried out after they pass away.
In this blog, we will explore whether wills are public record and provide some helpful tips for locating a missing will, as well as what to do if an executor is refusing to allow beneficiaries to see a will.
Understanding Wills
Before we dive into the topic of whether wills are public record, it’s essential to understand what a will is. A will is a legal document that outlines how a person’s assets will be distributed after their death. It can also specify who will care for any minor children and appoint an executor to carry out the instructions in the will.
Public Record vs. Private Record
When we talk about public record, we mean information that is available to the general public. Private record refers to information that is only accessible to authorized individuals. In general, people consider wills private records.
How Do Wills Become Public Record?
While people consider wills private records, they can become public record under certain circumstances. When a person passes away, their will is typically filed with the probate court. Probate is the legal process of distributing a person’s assets after their death. During the probate process, the will becomes a matter of public record.
Accessing Public Record Wills
Once a will becomes public record, it is available for anyone to access. In most cases, you can view a public record will by visiting the probate court where it was filed. Some probate courts have online databases where you can search for wills by name. If you are unsure where a will was filed, you can try searching online for the probate court in the county where the person lived.
Why Would Someone Want to Access a Public Record Will?
There are several reasons why someone might want to access a public record will. For example, a beneficiary named in the will may want to review it to ensure that their inheritance is distributed correctly. Creditors may also want to review a will to determine if they are owed any debts from the deceased person’s estate.
Protecting the Privacy of Your Will
If you want to ensure that your will remains private, there are steps you can take. One option is to create a living trust. A living trust allows you to transfer ownership of your assets to the trust, which means that they do not have to go through probate. Since the trust owns the assets, the details of your estate plan remain private.
Another Option is to Create a Pour-over Will
A pour-over will is a type of will that directs any assets not held in the trust to be transferred to the trust upon your death. This ensures that the trust safeguards your assets and keeps the specifics of your estate plan confidential.
Other Ways to Find a Will That is Not in Public Records
Although the probate court usually files most wills as public records, some situations may render a will unavailable in public records. Here are some other ways to find a will that is not in public records:
Check with the Attorney Who Drafted the Will
If you know the name of the attorney who drafted the will, you may be able to obtain a copy of the will from them. Lawyers must keep copies of the wills they draft and might be ready to furnish you with a copy. If the attorney is no longer practicing or has passed, finding a copy of the will may require additional research.
Check The U.S. Will Registry to Locate a Missing Will
Another option for finding a will that is not in public records is to check The U.S. Will Registry. The U.S. Will Registry is a database that allows individuals to register their wills and other estate planning documents. The registry can be searched by individuals who are looking for a missing will.
Check with the Executor of the Will
The executor of the will is responsible for carrying out the instructions in the will. If you know who the executor is, you may be able to obtain a copy of the will from them.
Under the law, the executor has a duty to provide the beneficiaries with a copy of the will and other estate planning documents. The beneficiaries have a right to see the will and to know how the estate will be distributed.
If an Executor Refuses to Allow Beneficiaries to See a Will
Beneficiaries can protect their rights by petitioning the court to request a copy of the will. Alternatively, they can hire an attorney to represent their interests. Legal action may be necessary if the executor is found to be in breach of their duties or acting in bad faith. Beneficiaries may be able to recover attorney’s fees and other costs associated with the legal action. However, it’s important to consider that it can be costly and time-consuming.
Check with the Bank or Financial Institution Where the Person Had Accounts
If the person who passed away had accounts at a bank or financial institution, they may have provided a copy of their will to the institution. If the person had created trust or other documents together with the accounts, this becomes especially true. You may need to provide proof of your relationship to the deceased person and other documentation to obtain a copy of the will from the bank or financial institution.
Search for a Safe Deposit Box
There might be a copy of the will in the safe deposit box if the deceased person had one. It’s important to consult with an attorney before attempting to access the safe deposit box. This is because accessing it may require a court order or other legal process.
Conclusion
In conclusion, most wills become public record when filed with the probate court. However, there are some situations where a will may not be available in public records. If you are trying to locate a will that is not in public records, you can check with the attorney who drafted the will, the executor of the will, the Register of Wills, the bank or financial institution where the person had accounts, or search for a safe deposit box. Consulting with an attorney is essential before attempting to obtain a copy of a will. This ensures that you are following the appropriate legal process.
