CONFIDENTIALITY AND ESTATE PLANNING.

From time to time, clients ask me who is entitled to see their will or trust. Often they ask because they want to keep matters confidential. Confidentiality is best discussed into two ways: before death and after death. Now, let’s examine each.

While a person is alive, the person’s estate planning attorney is strictly prohibited from disclosing any information to anyone else without the client’s express consent (authorization). An attorney is not supposed to even disclose that the client came to him for estate planning. So, as long as the client does not invite other persons to sit-in on the estate planning meeting, or subsequently allow others to read their estate plan documents, then the contents of that person’s will or trust will remain confidential.

That said, if the client later-on becomes incapacitated and the named successor trustee steps-in during the period of disability, then that other person will naturally read the trust (estate planning document). The trust document can advise the successor trustee, however, to keep the document confidential from other enquiring persons.

At death, the estate plan will have to be disclosed, to one degree or another. If a will is used, it is filed with the county superior court of residence; at which time anyone in the public is allowed to see the entire document. If a trust is used, however, it is not required to be filed with the county court, and so does not become a public record (unless trust litigation ensues). This makes the trust a more confidential document than a will.

Clearly, however, neither a will nor a trust is a “secret” document. That is, after death, one’s beneficiaries and heirs (i.e., those familial persons otherwise entitled to inherit under California Law) are each entitled, upon request, to a copy of the trust and/or will, as relevant. One cannot exclude disinherited heirs (e.g., a disinherited child) from receiving a copy of the estate planning document.

A major distinction between a will and a trust is that you can to a keep matters more confidential with a trust, as it does not become a publicly available document. If a trust is used, then it is best to remove any minor gifts to persons who otherwise are not entitled to receive a copy of the trust; instead, have their gifts pass by way of a will, in order that such minor beneficiaries do not become entitled to receive a copy of the trust. For example, a gift of an antique grandfather clock to a neighbor should not be included in the trust if one does not want the “neighbor” to know the contents of the trust.

Lastly, and importantly, after one dies, all beneficiaries are entitled to receive information about the estate’s assets, liabilities, receipts and disbursements to the extent that such information is pertinent to their inheritance. This usually comes in the form of an inventory and accounting by the trustee or executor to the beneficiaries.

In summary, until one passes-on, the estate planning documents can be kept confidential. After death, copies of the estate planning document(s) are allowed to the heirs and beneficiaries.

Editor’s Note: Dennis A. Fordham is an attorney licensed to practice law in California and New York. He earned his BA at Columbia University, his JD at the State University of New York at Buffalo, and his LLM in Taxation at New York University. Dennis concentrates his practice in the areas of estate planning and aspects of elder law. His office is at 55 1st Street, Lakeport, California. He can be reached by e-mail at dennis@dennisfordhamlaw.com or by phone at 707-263-3235.