As estate planning attorneys, we are often asked whether we can obtain another person’s last will and testament. This is not an uncommon request and often it’s a child or other beneficiary seeking to discover whether they have an inheritance that will be coming down the road to them.
As a first note, if you’re asking about the last will and testament of someone who is still alive then you should probably be talking to that person and not talking to an attorney. You should go and spend time with that person while they’re still with you, because once they’re gone, they’re gone.
What is the public record?
The public record contains documents and information that are not considered private or confidential. It includes court records, arrests, law suits, outstanding debt collections, and other things, such as legislation from the state legislatures and Congress.
Information that fits within the public record can be accessed by anyone. This is usually done by filing a form and paying a fee to the appropriate government agency. Once the government agency receives the fee, if the information is part of the public record, the person who requested access to the record will receive a copy of the document or information that was requested.
When a will is NOT a part of the public record
While a person is alive, their last will and testament is considered their “personal property” and, like with all other kinds of personal property, you don’t have any right to a living person’s last will and testament without their permission. Just like you can’t go and drive your mom’s car without your mom saying yes, you can’t go and take a gander at your mom’s last will and testament without your mom saying yes.
When does a will join the public record?
However, once a person has passed away, their last will and testament must go through the “probate process.” During the probate process, the will is filed with the local court and at that point the will becomes a public record. Once a will is filed with the court and becomes a public record, then anybody -even someone you don’t know – can access your last will and testament.
After you die your last will and testament is no longer considered to be private property and once admitted to probate, your will is on the public record.
So, like most answer that attorneys provide, the answer to whether a last will and testament is a part of the public record is a resounding, “it depends. “
How can you prevent your will from becoming public?
The short answer is … you can’t (unless you’re immortal).
However, if you’re looking to protect and preserve your privacy after your death, then you might want to consider a living trust or an irrevocable trust, which can help ensure that your estate, your assets, and your beneficiaries are protected from people who may access your will on the public record.
Typically, a trust does not become a part of the public record unless the trust is contested, and a copy of the trust is filed on the public record within the court system.