Privacy Issues in Estate Planning

privacyPrivacy is an important concern for many in the estate planning process. How your assets are distributed after your death can be very personal and the details of such distribution may be something you want to keep out of the public eye after your death.

Keeping family information private is simply not an option when it comes to probate. All personal information, such as the identity of the executor and beneficiaries, and your liabilities and assets, are open for public viewing, as probate is a public proceeding in state court. Anyone can access your personal and private information by going to the local clerk’s office or, in some states, by a quick search online. This includes relatives and creditors. This can be a significant roadblock to keeping the details of your after-death asset distributions private, since wills become part of the public record when they go through probate. This is the same result if you die without a will and own assets with no designated beneficiaries. Probate is then still required.

Living trusts are an example of an estate planning tool that is not subject to probate and can be used for privacy protection purposes. This is beneficial for any person who wishes for their assets and their disposition to remain confidential. Additionally, if you wish to disinherit a family member, you may wish to consider using a trust rather than a will, to avoid family members contesting the will in court.

One of the hardest decisions you may have to make in the estate planning process is determining how much (and when) to tell your children or other heirs about your plans. There is no one right answer for everyone. What you do depends on the nature of your planning and your family circumstances, but it is worth giving the issue some consideration.

If you have a blended family with children from a prior marriage, estate planning can be more complex. While it can be uncomfortable, there are many good reasons for having a detailed talk with your family about your estate plan. If there’s a possibility of family conflict, it can be better to tell everyone what you are doing, while you’re still alive and have a chance to explain your motives.

Talking with your children can also facilitate coordinating your estate plans. You might discover, for instance, that the whole family can save on taxes, and preserve assets for a longer time period if you give more assets directly to your grandchildren, or create trusts for your children with phased distributions instead of leaving assets to them outright.

Your Executor of your will, or Administrator of your estate where you die without a will, and your Trustee of your trust should know of the existence of your assets or liabilities. You can compile a list of your assets without going into detail. This list should include account numbers and the names of any brokers or agents you work with. If you have designated a beneficiary or joint owner of an asset, that information should also be included. If you own life insurance policies, you should indicate the location of the original policy and detail the designated beneficiaries.

Review and update the outline often. Either deliver it to your power of attorney agent, proposed executor or trustee, or family member(s), or tell them where it can be found, and make sure that the location is accessible to them. You may or may not choose to share your estate plan with your adult children, but they should at least know where to find the information if something should happen to you, unless you are utilizing a third-party executor or trustee.

Sharing the details of your estate planning is your own decision. If you decide not to share those details, your decision should be honored. But be aware that surprises can cause tension and uncertainty during a time when your family is emotional and needs to feel most secure. You may decide to try to avoid those surprises and the possible conflicts that could ensue. Individuals who have a strong desire for privacy when it comes to the after-death distribution of their assets should think about talking with an experienced estate planning attorney about steps that can be taken within their estate plan to further their privacy goals.

Consider using a trust agreement if you believe your family members will fight over your estate. This choice is not right for everyone, but is something you may want to discuss with your estate planning attorney to determine if it is an appropriate option for you.

Some families do not like to discuss end of life decisions. But if you address issues now and answer any questions your family might have, you may be able to avoid confusion and conflict after your death. The decision to share your estate planning documents is yours to make. Your estate planning  attorney cannot share the details of your estate plan unless instructed to do so by you.

To begin your estate planning process, please contact us at Aaron J. Goldberg, PLC.

 

 

“Used with permission 2016”

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Attorneys with Aaron J. Goldberg, PLC are members of the Vermont Bar Association and the National Academy of Elder Law Attorneys.