Several years ago, publicly recording Wills or other estate planning instruments was simply the way things were accomplished. Even today, many people automatically assume that the first step after creating an estate plan is to have it placed on the public record and recorded with their local county recorder. I will still have individuals come to my firm with this assumption because of something they either heard from older family members or read on the Internet. However, times have changed, and so has current thought on estate planning best practices. These days, very few estate plan documents are recorded, and for good reason. Let’s examine why recording an estate plan is not only unnecessary but might even cause problems.
The first item to consider is the fact that preemptive recording of an estate plan doesn’t actually provide any special protection. Most courts have determined that placing these documents in the public record doesn’t make them more legitimate than they already are. As long as an estate plan document (such as a Will) has been signed by the individual, notarized, and properly witnessed, it has the legal standing required. In fact, recording Wills may cause more confusion. Multiple conflicting Wills, recorded in different locations can produce legal contests and other chaos. It is all too easy for this kind of confusion to develop over the course of many years as estate holders change their assets, beneficiaries and/or places of residence.
Privacy is another critical issue that can be affected by estate plan recording. For many individuals, a document such as a Last Will and Testament is an intensely private statement – at least while they’re still alive. Sometimes these documents contain information that the individual wants kept away from out of the public eye. The Will may become a matter of public record after the estate holder dies if probate is necessary. The details of a Trust, on the other hand, may remain private even after death. A Power of Attorney also remains private unless it is attached to another, publicly-filed document. Optimally, the only people who can review these documents during your lifetime are the individuals with whom you choose to share.
The moment your estate documents are recorded, their privacy becomes very tenuous – especially if the information is shared in digital form on a county recorder’s website. Internet searches can yield a treasure trove of data to unscrupulous people. If keeping prying eyes away from personal documents is a top priority, putting those documents in a position where they’re available for public viewing or downloading is the last thing an individual wants to do.
If recording an estate plan is both largely pointless and potentially damaging to one’s privacy, then what kinds of precautions are necessary for securing such documents? Wills and other instruments can be safely stored in a fire-resistant safe at home, with backup copies kept in a safe deposit box. However, it’s absolutely critical that a few trusted individuals know where your estate planning documents are located and how to gain access in case of an emergency.
There is one other person who should be involved in estate plan preparations: a skilled estate attorney. The right legal guidance can help ensure that the estate plan documentation accurately reflects the estate holder’s wishes. This assurance, plus the knowledge that your estate plan information is kept private, will produce greater peace of mind for estate holders and beneficiaries alike.
© 2019 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved
This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.
