You’ve written a will. Who has the right to see it?

by | Jun 1, 2016 | Estate Litigation, Estate Planning, Power Of Attorney, Probate, Probate Litigation, Wills

Child with WillWills contain an enormous amount of sensitive information. If seen by unintended parties it could cause a mountain of headaches for the testator (the person making the testament, i.e., the person the Will is written for). For instance, imagine a family member who is expecting an inheritance from you gets a copy of your will in which you have excluded that family member. The outcome isn’t going to be pretty.

Luckily, there are legal precedents in place to limit who has access to a will. The precedents are pretty straightforward and only change depending on whether you’ve passed away or not.

Access to Your Will Before You Die

Mental Health EvaluationBefore you die there’s little anyone can do to gain access to your will without your permission. You don’t have to show your will to anyone if you don’t want to. The only way this changes is if a court determines that you don’t have the mental capacity to care for yourself. Then the permissions change:

  • You Have Mental Capacity: No one can see your will unless you give them permission. If you happen to have executed a durable power of attorney that is effective immediately, then the agent you have appointed would have the legal right to request a copy of your will because, technically, you have given them permission.  
  • Adjudicated To Not Have Mental Capacity: If a judge determines that you don’t have mental capacity then either the agent named in your durable power of attorney (if no guardian has been appointed) or your court appointed guardian (if the court has appointed one) can have access to your will.

Your Will After You Die

Grieving RelativesAfter you die the probate process begins. An application will be filed with the court to probate the will, an executor or administrator will be named, and the assets named in the will distributed between your heirs. Who has access to the will after you die depends on whether the will has been submitted to probate yet:

  • Before the will is submitted to probate: After you die your attorney, the executor named in the will (if one is named), and any beneficiaries named in the will can see the document. The Attorneys have access to it so they can advise the executors and beneficiaries on how to take the will to court. The executor sees the will so they can accept or decline the responsibilities — depending on the size of the estate the responsibilities of the executor could be extensive. The beneficiaries have access to the will so they know whether they’re going to accept or contest the distribution of assets. They can also contest any executors or trustees named in the will.
  • After the will is submitted to probate After a Will is submitted to probate then it becomes public record and anyone can see it. Most counties keep their documents online, and you can visit the county website to download the paperwork. If it’s not online you’ll have to visit the county offices and pay a small fee to access or retain a copy of the paperwork. Sometimes all you need is a name, but the case number of the probate will assist the clerk in locating the file.

 

Consult An Experienced Estate Planning Attorney

We always recommend you seek the counsel of an experienced estate planning attorney if you have any questions about the estate planning process or writing a will. A qualified estate attorney will guide you toward the right choices for your family and everyone involved.

At Romano & Sumner, we pride ourselves on our ability to assist our clients in navigating complex legal processes like estate planning and probate. If you have any questions, please feel free to contact us today.