Yes. Once a will is admitted to a probate court (or a court having administration duties for an estate), the will becomes a public document. If a testator wishes to keep estate information private, this can generally be accomplished through a trust.
What is the Difference Between a Will and Trust?
A will is a legal document that directs the transfer of a person’s probate assets at death. Assets owned by a trust are not transferred by a will, nor are assets that have certain other ownership characteristics.
Trust Assets are Not Transferred by a Will
Assets in a trust are not considered to be owned by a person in connection with the distribution of an estate. Instead, for these purposes, the trust is treated as a separate legal entity (much like a corporation is a separate legal entity that may own assets independent of its owners).
Because the trust is a separate legal entity, the assets in the trust continue to be managed by the provisions of the trust, even after death. If the terms of the trust require a distribution at death, then such distribution will take place according to the terms as the person creating the trust has decided. In other instances, if so designed, the trust may continue for years to manage assets for the benefit of the trust beneficiaries.
What Assets Are Transferrable by a Will?
During life, a person may own property that may be subject to different ownership conditions. The nature of the property and ownership will determine whether the property can be transferred by will. Here are some common examples of property ownership:
- Property owned solely by a person with no conditions. In Massachusetts, if a person purchases an asset in their individual name, such as a car, that person is the sole owner of the vehicle. Subject to mortgages or security interests in the property, the person can transfer the asset however they wish – either during life or upon death. All property owned by a person individually, with no other legally enforceable provisions for distribution at death, is transferred upon death in accordance with a person’s will, or, if there is no will, according to state intestate laws.
- Joint tenants with right of survivorship. Joint tenants with the right of survivorship (“JTWROS”) or tenancy by the entireties are common ways for real estate to be owned. While a person may have the right to transfer property with this designation during life (subject to the interests of the other owners), at death the property automatically becomes vested in the other owner or owners, irrespective of the provisions of a will or trust.
- Pay on death accounts. Upon death, the pay-on-death designee automatically becomes the owner of whatever funds are in the account. The funds in the pay-on-death account are not transferrable by a will.
- Life insurance. During life, a person who purchases a policy on behalf of himself or herself can control the policy. Upon death, the insurance proceeds are paid directly to the beneficiary (or beneficiaries) of the policy, and any provision in a will purporting to transfer the insurance proceeds to someone else will not be binding.
Coordinating Asset Transfers
For those who may be concerned about the distribution of their joint property, or coordination of their estate plans with the asset ownership, I would invite you to call my office and schedule a meeting. Once I learn about the nature of your assets and objectives, I can explain what options may be available, and the benefits of each of such options.