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Harper Lee’s Estate Shows Us There’s Just One Kind of Privacy For Your California Will: The Court Approved Kind



Last will and testament

This just in – your California will is usually not a private document! No, really. If you don’t have a trust in California, your will is submitted for probate. All the terms of your will – how much you have, who your beneficiaries are, who you left out – is all public knowledge. Probate proceedings are public and all documents filed in any probate proceeding are generally available to any member of the public.

The acclaimed author, Harper Lee, had a will but apparently no trust. (Why she didn’t have a trust is a question for a whole other blog/rant. With such a substantial legacy and estate, it is troubling that more sophisticated estate planning was not done for Ms. Lee after the phenomenal success of her first novel.) So her will would normally be a public document. However, lawyers for Ms. Lee’s estate petitioned the court to keep her will private. They were successful and the will is now unavailable for public inspection.

The careful reader will notice the caveats in the statements about the public nature of wills in the opening paragraph. (Lawyers always equivocate. We can’t help it. It’s what we were taught in law school.) There is a way to have your will kept from prying public eyes, as we have seen in celebrity cases. A famous example is the Hearst will (although there was a motion to unseal these documents, because big money is involved). The process to have your will kept private after your death requires that your executor hire a probate attorney to petition the court to have your will sealed. This is neither a simple nor common process.

In order for the court to rule in favor of keeping your will private, California rules of court require that there must be an overriding interest that trumps the public’s right to access information. Your executor’s attorney must also show that the overriding interest would be substantially prejudiced if the will was not sealed. And as if that’s not difficult enough, your executor’s attorney must also show that sealing the will is the only way to go, i.e. there is no other way to protect the overriding interest.

The Estate of Harper Lee argued to the Alabama probate court that Ms. Lee had left a large and lasting public legacy through her books and that her financial matters should remain private. All the heirs and beneficiaries of Ms. Lee’s will agreed with this argument and ultimately the Alabama probate court did too.

A valuable lesson to be learned here is to create a trust if you want your estate and your wishes to remain private. A California will alone will not provide you privacy. A living trust is a common estate planning mechanism to avoid probate, maintain your privacy, and reduce estate taxes. Because even if you haven’t written an incredibly successful novel, a professionally created estate plan can kill two birds with one stone.

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