Does a will become public when it is probated?

Key takeaway

Public access depends on the applicable court record rules. In Minnesota, for example, restricting access to public case records requires the procedures in applicable court rules and findings required by law, court rule or precedent. Other states differ.

That authority does not create an automatic right to seal a probate file. When privacy matters, separate three questions: what must be filed, what can be inspected and what can be viewed online.

Informal administration still creates records

In Wisconsin, informal administration covers estates with or without a will, without continuous court supervision. These remain circuit court proceedings, with records kept in the same manner as formal proceedings. Administrative action by the probate registrar is not court action.

This recordkeeping requirement does not establish unrestricted public access to every record.

Filing a will and family information

In Minnesota, for example, applications for informal probate or informal appointment go to the registrar, verified as accurate and complete to the fullest extent of the applicant's knowledge and belief. Other states differ.

Except for applications for a special or successor representative, the application includes the deceased person's name, birth date, death date, and county and state of domicile at death. It also includes names and addresses of the spouse, children, heirs and devisees, plus minors' ages, so far as known or ascertainable with reasonable diligence.

For informal probate of a will, the original must already be with the court or accompany the application. Alternatively, an authenticated copy of a will probated in another jurisdiction must accompany the application. These filing requirements alone do not establish public access.

Lifetime safekeeping has its own confidentiality rule

In Minnesota, for example, a will deposited for safekeeping by its maker or the maker's agent under court rules must be sealed and confidential. Other states differ.

During the maker's lifetime, delivery is limited to the maker or someone authorized by the maker's signed writing. A guardian or conservator may examine a protected maker's deposited will under procedures preserving confidentiality as far as possible and requiring resealing and continued deposit.

Once informed of death, the court may deliver the will to the appropriate court. Lifetime safekeeping does not establish confidentiality of a later probate proceeding.

Protection for sensitive identification numbers

In Minnesota, for example, restricted identifiers are prohibited in court filings unless germane and necessary for the court's consideration of the issues before it. Other states differ.

Restricted identifiers include complete or partial Social Security, employer identification and other taxpayer identification numbers. They also include financial account numbers, except the last four characters when the account number is not also one of those identification numbers.

Necessary identifiers must go on Confidential Information Form 11.1 or a nonpublic document submitted under General Practice Rule 11.03. Form 11.1 is not publicly accessible.

Two related terms

Personal representative: In Minnesota, for example, an executor must receive appointment by the court or registrar, qualify and receive letters before acting. The executor must prudently settle and distribute the estate under the probated will and applicable law, and other states differ.

Probate inventory: In Minnesota, for example, an estate inventory lists property owned at death, its fair market value at death, and the type and amount of any encumbrance. Other states differ.

Resources to check out

Wills and probate
Open this guide to place your privacy questions alongside the broader will and probate discussion. Use it to organize the topics you want to discuss with your attorney.
Wills and probate records and questions checklist
Use this checklist to prepare for a conversation about the will and related records. Add a separate question about who can inspect each document you are concerned about.
Estate administration
Continue here if you are handling a deceased family member's affairs and need a broader administration overview. Keep your questions about court access beside your other administration questions.
Estate administration records and questions checklist
Bring this checklist to a meeting about organizing estate records. Identify documents containing account details or family information so you can ask about their treatment individually.

Make privacy part of the conversation

Bring specific privacy concerns to your planning conversation. This talk offers a perspective on understanding a family's priorities.

"so they get to know themselves and what they want but also we get to know them versus me saying like hey we should work together in this way because first of all it doesn't respect who they are and there might be nuances that I won't get through a simple Zoom call or a single meeting"
From an Investor Advantage talk hosted by Richard C. Wilson

Frequently asked questions

How can I inspect a publicly accessible record?

In Minnesota, for example, request inspection or copies from the records custodian where the publicly accessible record is normally kept, during regular working hours. Other states differ.

Substitute formats may be used if original access would expose protected information, permit prohibited remote or bulk access, jeopardize security or be impractical. Records cannot leave their normal area without the custodian's express permission.

Statutory copy fees may apply. Inspection fees require statutory authorization.

Does a hearing exhibit automatically become available online?

No. In Minnesota, for example, hearing and trial evidentiary exhibits are not remotely accessible merely because they are exhibits. Other states differ.

Full or partial versions otherwise submitted as publicly accessible court records may remain remotely accessible. This exhibit rule does not establish whether an ordinary filed will is available online.

Does every estate inventory automatically become a public court record?

No such conclusion follows from Minnesota's inventory requirement, which permits filing or mailing.

In Minnesota, for example, the personal representative must prepare and file or mail a reasonably detailed inventory within six months after appointment or nine months after death, whichever is later. Other states differ.

This duty excludes special administrators and successors whose predecessor already discharged it. Copies must be mailed or delivered to the surviving spouse, all residuary distributees, and interested persons or creditors requesting one.

A representative need not personally receive a copy as spouse or residuary distributee. The filing or mailing alternative does not establish that every inventory or every asset automatically becomes public.

Is an official death certificate publicly accessible in the case file?

In Minnesota, for example, an official death certificate is nonpublic, except to the extent it or a redacted version is formally admitted into evidence in a testimonial hearing or trial. Other states differ.

The certificate must be issued by the proper governmental authority. An electronic filer must classify it as confidential. If the court administrator discovers incorrect classification, the administrator must correct it and notify the parties and presiding judge.

Sources

Talk to Richard