05 Aug Wills vs. Trusts: How to Keep Important Matters Private: Shelly Joyner, Associate Attorney
“Back in the day”, one of the worst things that could happen was if someone read your diary. Now, with social media, kids get mad if their Tik Toks or Insta Stories don’t get enough views. Despite the prevalence of over-sharing in our lives nowadays, some people still value their privacy.
Somewhere between having a house on a secluded mountain top in full Ron Swanson mode and installing a live stream camera in your living room 24/7, there is a plugged-in life with basic privacy protections. However, executing a Last Will and Testament is NOT one of the activities that ensures privacy.
What most people don’t realize is that even if a will is written by the best lawyer ever and is “self-proved” by being executed with a notary and two witnesses, a will still has to be proven in court to have legal effect. Not only are there discussions in open court regarding your estate, but most of what is discussed is put in writing and is easily accessible in a public records search.
Examples of things that are made public when your will goes through probate in the courts:
|You disinherited a child||You owed back taxes|
|Your house had a lien on it||You owed back child support|
|Your grandson can’t serve as executor because he’s a felon||Your daughter only gets her inheritance if she passes a drug test|
|You had $100,000 in credit card debt||You owned 100 guns|
|Your spouse is getting your ilfe insurance policy and their address is listed||You’re estranged from your siblings|
|Your house is now vacant with no one watching it||Your business had no succession plan|
|Your beneficiaries and how much they do or DON’T get||Your bank account balances|
|Your bank account numbers||Literally EVERYTHING in your will|
Are you, like Ron Swanson, wondering how to put a stop to this public record of some of your most personal business? The easiest way to create the most protection against this kind of invasion is to establish a living trust. A living trust does all of the things you know that a will does: puts someone in charge after you die and spells out who gets what of your assets. However, a living trust does all the things a will does (and more) with zero involvement from the courts. If your estate plan doesn’t have to go to court, then it isn’t made public. If it isn’t made public, the world won’t be able to peculate why you left 5% of your estate to your daughter and 95% to your alma mater.
You don’t care what happens after you die? Fine. A trust can also help avoid guardianship proceedings while you’re still alive. When you create your trust, there is almost always a provision that leaves an option for your successor trustee to take over your affairs while you’re still alive if you become incapacitated. The alternative to this is a guardianship proceeding in court. This is a lengthy, expensive, and sometimes emotionally draining process where your loved ones actually have to sue you in court to have your adult rights taken away so that you can be cared for. This involves extensive digging into your financial and medical records in open court. If you want to protect your privacy and plan to avoid potential guardianship proceedings in the future then a trust is for you!