Kenneth Carroll: Is A Person’s Will Public Record?

If all you do is draft a will, it might never be public record. If you die and you leave a will, it may become public record if your will is submited to a probate court.

Estate planning can be an extremely complex matter, depending on the size and types of a person’s assets. Wills eventually become part of the public record via the probate court process. In response, private estate planning techniques, such as trusts, have arisen.

Creation of the will

During the creation of the will, everything remains confidential thanks to lawyer regulations and rules of evidence that maintain client confidentiality. Drafts of a will and the will itself may not be revealed by the attorney or his staff. Estate planning can be an extremely complex matter, depending on the size and types of a person’s assets. Wills eventually become part of the public record via the probate court process. In response, private estate planning techniques, such as trusts, have arisen.

Storing the will

After the will has been created, the testator i.e. the person that is the subject of the will is free to publish her will to the public. In a few states, she may also register her will. However, even if a will is registered, the contents remain private until death. Only the fact that a will exists would be available to the public. Estate planning can be an extremely complex matter, depending on the size and types of a person’s assets. Wills eventually become part of the public record via the probate court process. In response, private estate planning techniques, such as trusts, have arisen. Upon death and opening of a probate proceeding, which is necessary to process the will, the will becomes public record. With few exceptions, such as cases involving minors, probate court records are public records. This is why some families pass property via a trust rather than by will.

Wills and other probate documents are public records, so you should be able to find them with a little detective work. Typically, you’ll need the deceased person’s name, date of death, and last residence. The process for finding will records will depend on where you are searching.

Obtaining Records

• Find the deceased person’s full legal name. You’ll need to search for a will or other probate records by name. Get their first and last name, at a minimum. Also look for their middle initial or middle name. Ask people who knew the deceased if they knew their full legal

• Confirm the date of death. This is easy if you knew the person. If you aren’t 100% sure, you can look through newspapers and try to find a death notice. Other people may need to search the Social Security Death Index. The Death Index provides information for those who died after 1936 and who had a Social Security number. You can search the death index for free at different genealogy websites. Some will charge you money, so look around to find a free option.

• Determine the last place of residence. Probate records are kept in different courts around the country. There is no one central repository, so you need to find out the county where the deceased last resided.

• Find the probate index for the records you want. The index is the archive that holds the records. Do an Internet search to find the website for the archive. Many sites include holdings information, telephone numbers, and even addresses and directions to the probate court. Some sites may even allow you to view the records online.

• Visit the probate court if you can’t find the records online. Once you have the probate index, you should contact the probate court in that county. Probate records are public records, but each court might have a slightly different process for obtaining access. Provide the clerk with the probate index and the deceased’s name so they can find the file.

• Find the will or other document. The will should be near the front of the file, since the executor started the probate process by filing the will with the court. Other records may be scattered throughout the file, so go through it carefully to find what you need.

• Check if you can make copies. There might be a coin-operated photocopier in the clerk’s office. Ask if you can make copies and how. You may need to use your smart phone to take pictures of the pages. Don’t try to walk out of the courthouse with the case file.

Finding Will Records

• Identify the deceased. You’ll search for wills by last name and the year of death. If you don’t know the year, look in newspapers or ask people who knew the deceased. As a last resort, you can guess different years of death.

• Pay to order. You can pay with credit or debit card. It costs £10 for each record. After you order, it will take up to 10 working days for you to receive the requested records.

• Submit an order through the post instead. You’ll need to download Form PA1S, which you can get. Complete the form and submit £10. Each additional copy costs £0.50. Pay with a cheque, postal order, or international money order. Write the name of the deceased person on the back of your payment. Submit the form and payment to the address provided on the form.

How to Read a Will in Public Records

The terms of a last will and testament are private until the testator, or will maker, dies you cannot know the contents of a living person’s will unless he shows you. However, once the testator dies, the will’s executor files the document with the probate court. While courts sometimes restrict access to celebrities’ wills, you can review the vast majority of wills at the court clerk’s office. You can even read a celebrity’s will if you are a relative and have a reasonable hope or expectation of receiving a bequest.

Viewing Wills in Probate

• Determine the court in which the will is being probated. Locate the telephone number for the clerk of court and call for business hours. Ask whether probate documents are kept with general court filings. Obtain the exact street address of the probate document location.

• Provide the court clerk with the name and date of death. He will obtain the probate case number and pull up the file. Follow his instructions as to where to sit or stand to review the file.

• Review the will, one of the first documents in the probate file. Ask the court clerk to make copies of the document to review more fully at home. Pay the small per-page fee.

Reviewing Archived Wills

• Ask the court clerk where archived wills are stored in your county. Go there with the identifying information about the deceased.

• Determine the appropriate procedure for locating the archived will. In some jurisdictions, the clerk locates the will for you using the information you provide. Alternatively, the clerk may send you to an index either alphabetical or by date and you access the information for yourself.

• Review the archived will. Many courts keep original wills from many years back in binders organized by date, but newer wills will likely be in microfilm. Request copies of the will to review more carefully at home. The court charges a small per-page fee, or directs you to a self-service copier.

Will is Personal Property While Owner is Alive. While someone is alive, his last will and testament is personal property. Usually, there will be a copy of the will stored with the individual’s attorney to be sent to the executor when the owner dies. The executor is responsible for making the will public for the sake of the named beneficiaries. Some states require an executor to make the will public in probate court. Unfortunately, due to greed or unforeseen circumstances, the normal process may be difficult to establish. It is wise for an individual, who may be a beneficiary, to get a copy of the will for personal reasons due to emotional attachment to the deceased and legal reasons to protect the rights of inheritance. The probate court is responsible for distribution of certain financial assets of the deceased person’s estate.

Once the executor delivers the will to the probate court, the will becomes a matter of public record. Anyone can make a telephone call, send a fax or write a letter to the appropriate probate court to receive a copy. The probate court in the place where the deceased person had his residence or in which he owned property has jurisdiction. Many probate courts will have online websites where a beneficiary can search using the deceased person’s name. Probate court is not necessary for the distribution of certain types of financial assets, like joint accounts and insurance. These can be transferred directly to the beneficiaries. Thus, if all of the deceased’s property consists of non-probate financial instruments, then probate legal action is not necessary. If the will has not been sent to probate, then the beneficiary should contact the executor of the will to receive a copy. The executor has a legal duty to make the will known to beneficiaries. Named beneficiaries have the legal right to see the will and can initiate a lawsuit to enforce said right.

Any person over the age of majority and having “testamentary capacity” (i.e., generally, being of sound mind) can make a will, with or without the aid of a lawyer. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:

• The testator must clearly identify themselves as the maker of the will, and that a will is being made; this is commonly called “publication” of the will, and is typically satisfied by the words “last will and testament” on the face of the document.

• The testator should declare that he or she revokes all previous wills and codicils. Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.

• The testator may demonstrate that he or she has the capacity to dispose of their property (“sound mind”), and does so freely and willingly. The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). There may be extra witnesses; these are called “supernumerary” witnesses, if there is a question as to an interested-party conflict. Some jurisdictions have long abolished any requirement for witnesses. In Utah, it requires both attestations by two witnesses as well as notarization by a notary public. Holographic wills generally require no witnesses to be valid, but depending on the jurisdiction may need to be proved later as to the authenticity of the testator’s signature. If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either disallowing them to receive under the will, or invalidating their status as a witness. In a growing number of states however, an interested party is only an improper witness as to the clauses that benefit him or her.

• The testator’s signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator’s intentions. One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.

There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person’s death, and so there is little room for mistake. A common error, for example, in the execution of home-made wills in Utah is to use a beneficiary (typically a spouse or other close family members) as a witness which may have the effect in law of disinheriting the witness regardless of the provisions of the will. A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator’s estate. In some States, children may be disinherited by a parent’s will, except in Utah, where a minimum share is guaranteed to surviving children except in specifically enumerated circumstances.

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When you need legal help with estate planning in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you with wills, trusts, probate and estates.