Wills contain important information about who receives money, possessions, and property upon a person’s death. Who can view this information, and is it a public record?
Once your will goes through probate (called a succession in Louisiana), it becomes a public record. The probate court must maintain the will so that the public can access it.
Anyone can visit the probate court to view the will, regardless of whether they are an heir or beneficiary. For a fee, they can obtain a copy. In some parishes, wills are also available online.
Why Are Wills Public Records?
Numerous individuals could have a right to receive assets from an estate when someone dies. During probate, the deceased’s personal representative, also known as an executor, satisfies debts and distributes assets to beneficiaries.
Sometimes, the probate process overlooks creditors or beneficiaries who are entitled to a portion of the estate. When this happens, they can bring claims against the estate. They must bring claims within the applicable time limit or statute of limitations, which depends on state law and depends on who is looking to bring forth a claim. Public access to wills makes bringing claims easier for those with a right to an estate.
When Do Wills Become Public Records?
Until someone files the will to begin the probate process, wills are not public records. Individuals often create several wills in their lifetimes as they update their plans; only the final will becomes a public record. In many cases, an individual’s estate planning attorney retains the will, or they keep it in a secure location. Some choose to share copies with their loved ones.
The law does not require wills to be public records during the lifetime of the testator (the person making the will). Some jurisdictions allow people to file their wills with the court while they’re alive, but this practice is uncommon.
When the will becomes public depends on the deceased person’s jurisdiction. To validate a will and begin the process of asset distribution, the personal representative petitions the probate court. In some states, the will and other probate records could be public while the court probates the estate. For many other states, however, the will becomes a public record after the court closes probate. In Louisiana, the will becomes a public record when a succession is opened and the will is filed along with the petition to probate it.
Probate courts have the power to make wills private. However, this only happens in rare cases under specific circumstances. If a will underwent probate, it is likely a public record available through the court that probated it.
How to Find Out If Someone Has a Will
Talking to your loved ones about where they keep their wills and other estate planning documents is a good idea. Yet, many people are unsure whether their loved one made a will before passing away.
You can find out whether someone has a will by:
- Checking with the probate court in the parish where the person died
- Searching your loved one’s home for a secure location like a home safe, safety deposit box, or a filing cabinet in a home office
- Consulting with others to determine if an executor is carrying out your loved one’s wishes
How to Find a Will in Public Records
If you are an heir, beneficiary, or creditor of an estate, you might be interested in locating the will. Since wills become public records after probate, you could find the will by identifying the court that administered probate. If probate has already occurred, this process may be straightforward.
Locating a will can be more challenging when probate has yet to occur. The attorney who prepared the will might have the will but will not release it to you unless you are the personal representative.
Are Trusts Public Record?
Some people might wish to transfer their assets privately. To do this, they can set up a more complex estate plan using trusts. Trusts are generally not part of the public record.
But as a reminder, a single document like a will or trust is usually not enough to create an effective estate plan. Consult with a qualified estate planning attorney in your area to learn more about making a plan that fits all of your needs.
The information provided is not intended to be legal or tax advice and does not constitute any attorney/client relationship. You should consult with an attorney for individual advice regarding your own situation.
Ms. Melancon is an attorney with Legacy Estate & Elder Law of Louisiana, LLC with offices in Baton Rouge, New Orleans and Lake Charles, LA. The primary focus of her practice is estate planning, probate, special needs planning, and elder law. For more information or to attend an upcoming estate planning seminar, call her office at (225) 744-0027.
