The public nature of Wills has long been a source of family drama. A client of mine recently joked, “You know what I say – where there’s a Will, there’s a relative.” And he’s right! Nothing attracts forgotten cousins, estranged siblings, and distant heirs quite like the possibility of an inheritance.

Many people assume that a Will is a private document shared only with those who are named in the Will as beneficiaries and trusted advisors. In reality, when a person dies, their Will must be submitted to the probate court, where it becomes part of the public record. That means the details of an estate – including who inherited assets, who was left out, and the nature of the assets themselves – can become available to anyone who knows where to look.

This public process serves an important purpose. Probate courts provide oversight, ensure debts are paid, and confirm that the deceased’s wishes are carried out properly. But the transparency that makes probate work can also create unintended consequences. In every probate proceeding, no matter what the Will says, the deceased’s closest living heirs must be notified and given the opportunity to object to the validity of the Will and the appointment of the nominated Personal Representative.  Family members who have not been heard from for years may suddenly become interested in the estate. And beyond the heirs, distant cousins, former spouses, or other relatives may reappear once they learn that probate proceedings have begun.

Sometimes these relatives simply want information. Other times they believe they are entitled to the estate assets. Perhaps they feel they were unfairly excluded from the Will. Maybe they suspect undue influence by a caregiver or another beneficiary. Sometimes they are merely hoping for a settlement that avoids a lengthy legal dispute. Even when those claims have little merit, the public nature of probate can create opportunities for conflict, delay, and expense.

Importantly, this issue is not limited to people who have Wills. If a person dies intestate – that is, without a valid Will or Trust – any assets in their sole name still generally pass through probate. The court must determine who the legal heirs are under state law, and that process can involve identifying remote family members. In those situations, long-forgotten branches of a family tree can suddenly become very relevant. The proceedings remain public, and distant heirs may emerge with inheritance rights they never expected to have. In other words, dying without a Will does not eliminate the possibility of relatives coming out of the woodwork – it actually increases the potential.

So what can you do about it?

For many families, the answer lies in the use of a Trust. Unlike a Will, assets that are properly funded into a Trust avoid probate altogether. Because the trust administration occurs outside the probate court system, the terms of the Trust are private and do not become part of the public record. This allows families to maintain a much greater degree of privacy regarding their assets and beneficiaries, and avoid the need for notice to heirs who have been excluded.

Trusts can also reduce the time and costs associated with estate administration. Probate often involves filing fees, court costs, legal expenses, and administrative delays. While there is still cost associated with establishing a Trust and administering the Trust after a person’s death, avoiding probate can significantly reduce the time, expense, and complexity involved in transferring assets after death.

Perhaps most importantly, Trusts provide a level of flexibility and control that Wills often cannot match. Rather than distributing assets outright, a Trust can hold assets for beneficiaries over time and distribute them according to carefully crafted instructions. Parents may choose lifetime trust shares that protect assets from their children’s creditors, divorce, or poor financial decisions. Families with loved ones who have disabilities can create special needs trusts designed to preserve eligibility for important government benefits while still providing financial support. Trusts can also stagger distributions at certain ages or milestones, allowing beneficiaries to receive funds gradually rather than all at once.

These planning tools allow people to think beyond simply who receives an inheritance and focus on how that inheritance can best serve the beneficiary’s long-term needs and goals.

Estate planning is ultimately about creating clarity, protecting loved ones, and preserving your legacy. While probate serves an important legal function, many families prefer the privacy, efficiency, and flexibility that Trusts can provide. By planning ahead and choosing the right tools, you can reduce the likelihood of unwanted surprises, minimize opportunities for conflict, and leave behind a legacy that reflects your intentions. With thoughtful planning, your estate can become a source of security and support for future generations – rather than a public invitation for distant relatives to come knocking.

 

Attorney Leah A. Kofos is a senior attorney with the Dedham firm of Samuel, Sayward & Baler LLC, which focuses on advising its clients in the areas of Trust and estate planning, estate settlement, and elder law matters. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781-461-1020.

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