Dear Expert,
I am drafting a will that will include a long list of specific bequests of things, cash, and a condominium apartment worth approximately $1M. Assuming the will must be submitted to probate court in NY, what can I do to maintain my privacy regarding these specific bequests. I don't want the list available to the public, allowing various friends and family members bickering about who got what/how much. Should I make a seperate list, notarized on or prior to the will execution date, that is merely referenced in the will?
Sincerely,
Single - No Heirs in New York

Hi Single - No Heirs in New York

Unfortunately, a last will and testament becomes a public document as soon as you die and someone makes an application to have the will admitted to probate. Some people may argue that the will doesn't become public until it is actually admitted to probate, but I disagree. As soon as someone submits it to the probate court, it's a public document and anyone can take a look at it.

I can attest to that fact because I've gotten copies of wills from probate courts many, many times. In fact, just last week I called the probate court in Tampa, Florida and asked for a copy of George Steinbrenner's will. There was absolutely no problem, and I had someone pick up a copy the next day. (We will be posting his will in our Famous Wills section very soon.) They did charge me $24 for copying costs, but that was it.

So, a will is a public document and you can't keep the contents confidential. Anyone who wants to stick their nose into your affairs can do so without a problem. In fact, they can get a look at your entire probate file, including an inventory of your assets, a list of your creditors, etc. Some courts will restrict access to your medical records (if any) that are deemed to be too sensitive, especially psychological reports.

Quite often people will recite in their will that they may leave a memorandum regarding how they want specific property distributed. When that is done, the will actually leaves the property to specific people, but requests that those people honor the testator's wishes as expressed in the memorandum. That's alright when tangible personal property with little or no value is concerned; i.e., household furniture, golf clubs, garden tools, etc. But when you're talking about money and other investment properties, that just won't work. It won't work because the memorandum is not a part of the will and the beneficiaries of the property under the will are not legally bound to honor your wishes as expressed in the memorandum.

For example, if you give $20,000 dollars to your girl friend and then leave a memorandum saying that you want her to give the $20,000 to your golfing friends, guess what? It probably won't happen! As far as the law is concerned, the $20,000 belongs to your girl friend and she doesn't have to give a hoot about your memorandum.

With all that being said, is there a proper way to maintain your privacy regarding certain specific bequests and still have them be legally binding? Yes, there is - it's through the use of a living trust.

As a describe in my article entitled "6 Reasons Why You Should Have a Living Trust," reason #6 is privacy. Whereas a last will and testament is a very public document, a living trust is a very private document. Remember, a living trust is nothing more than a contract between the grantor of the trust and the trustee. That contract is not a part of any probate process and, therefore, never becomes a public document.

So how does it work? Well, you create the living trust and provide in the trust instrument how you want your property distributed upon your death. It's basically a substitute for a will. Then, you have the option of transferring your assets to the trust during your lifetime if you wish. The advantage of that is (1) to provide for continuity of management of those assets in the event you become incapacitated and (2) to avoid probate of those assets upon your death.

If you don't transfer assets to your living trust during your lifetime, then you need a will to make the transfer upon your death (called a "pour-over will"). Your assets go through probate, your will then transfers your assets to your living trust, your living trust then distributes your assets to your intended beneficiaries in private.

Case in point: Take a look at Ted Kennedy's last will and testament. His will is public (that's why we have it on our website) but it doesn't tell us anything about how his property is to be distributed. All it says is that his property is given to the trustees of his living trust. We need his living trust instrument to know how he wants his property distributed. But his living trust is private. We'd love to post it on our website, but we can't get a copy of it.

Keep in mind, though, that even the use of a living trust is not perfect. There is nothing to stop the beneficiaries from making the trust public. Take, for example, Michael Jackson's living trust. He had a living trust and a pour-over will. As far as we know, his living trust was not funded during his lifetime. Instead, his pour-over will transferred his assets to his living trust upon his death. Obviously, his intent wasn't to avoid probate, it must have been to keep the distribution of his assets private. His plan would have worked perfectly, except that one of his beneficiaries made the trust instrument public. Now you can read his entire trust instrument on the internet - just google Michael Jackson's living trust.

Foruntately, most heirs prefer to keep things private. If you stroll through our Famous Wills section, you'll see that almost everyone has utilized a living trust to conceal how their property is to be distributed. Yet, you'll just see a copy of their pour-over wills. With Michael Jackson being the exception, you won't be able to see what their living trusts say.

So, if you want to make your gifts private upon your death, the solution is a living trust with a pour-over will.