A last will and testament is an important part of any estate plan. A will is one of the few estate planning tools that is useful for almost everyone. That said, there are things that a will cannot accomplish. Depending on your goals in leaving a legacy, you may want to combine a will with other devices.
One of the features of wills is a potential benefit or drawback, depending on your point of view. In New York, wills are filed and retained in the Surrogate Court of the county in which you live. That means your will becomes a public record, obtainable by anyone, once the probate process has begun.
The public nature of wills can be a drawback if you are an intensely private person. It can be a benefit in exposing elder abuse in the form of manipulation by parties interested in obtaining your assets. If a will can’t stand up to public scrutiny, it may not have been a true reflection of your wishes.
The privacy solution
A recent situation involving Harper Lee, the famous, though very private author of, “To Kill a Mockingbird” demonstrates both the potential harm and good of public wills. Ms. Lee’s will is a simple document declaring that the majority of her assets were to be placed into a trust. Trusts, unlike wills, are not public documents. The trust can direct the use of the assets placed within it in any number of ways. The appointed trustees will know the scope and purpose of the trust, but the public will not.
In Ms. Lee’s situation, there has been some question if the trustee was acting in her interests, or was abusing her position of trust to take advantage of the 89 year-old author. The will was signed 8 days before her death in the assisted living facility where she had resided since suffering a stroke in 2007.
The problem with privacy
If your loved ones are blindsided by your choices in leaving a legacy, the result is often family strife and even legal disputes. Your goals could be frustrated and assets wasted. Privacy comes at a cost. That said, your estate planning goals are your own. The right plan for you will achieve your vision, regardless of how others feel about it. To find and establish that plan, you should work with a knowledgeable attorney sooner, rather than later.
Source: The New York Times, “Harper Lee’s Will, Unsealed, Only Adds More Mystery to Her Life,” by Serge F. Kovaleski, 27 February 2018