An Alabama probate judge entered an order recently sealing the probate court file, including the will, of Harper Lee, the famed author of “To Kill a Mockingbird.” Attorneys for the estate successfully argued public access should be restricted, in part, because the author would not have wanted her private financial information to be a matter of public discussion. Interestingly, despite being a notoriously private person, Lee chose to direct the disposition of her estate through a last will and testament, a historically public process.
In Missouri, the courts have established a strong common law right of access to judicial records, so many courts are reluctant to restrict public access to court files, particularly in the probate division. Given that fact, how can you ensure your financial affairs and personal decisions about who should inherit your estate are not accessible to the public? The answer for most individuals is to establish a revocable trust during life, transfer all assets to the trust prior to death, and sign a “pour-over” will that directs any property not already in the trust to be added to the trust upon your death.
While your will must still be filed with the court, its terms will disclose only that your probate assets (those owned in your name alone and not by your trust) should be transferred to your trust. There will be no information in the court records about who your beneficiaries are or what you gave to each. More importantly, if you properly fund your trust before death (you transfer ownership of all of your assets to your trust before you died), there will be no probate assets to disclose to the court. As a result, there will be no information in the public records about your financial affairs at all.
Harper Lee’s probate case is a highly unusual one given her fame, which likely made the judge much more amenable to sealing the file. For the less famous among us, a judge may not believe restricting public access is appropriate, so why leave it to chance?