Alabama's law regarding public access may pose a challenge if you want to keep your estate matters private after your death. According to Alabama Code Section 36-12-40, government officials in charge of public records have a duty to provide access to those records. If you are determined to keep your postmortem affairs private, you may have to resort to alternate estate planning methods that bypass the probate process.
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Once your estate has been probated, your will and all documents contained within the probate file are generally viewable by everyone upon request. These records are of particular interest to title researchers if real estate is involved. A title researcher must verify by reviewing the estate documents that the real estate has been or is being conveyed according to the terms of the will. She may need to verify whether or not the personal representative is authorized to sell the property. To the title researcher, the availability of estate records is just as important as the availability of deed and mortgage records. In some counties, public estate information may even be available online.
You may choose to establish a trust prior to your death setting out the terms and conditions under which your property may pass to others. All your property may be deeded to the trust prior to your death so that there is no property left to be included in a will. Trust agreements, unless recorded in the deed records, are not available for public view. If all the property does not pass to the trust before your death, you may will your property so that it passes into the trust after you die. The public will not be able to view the names of the individual beneficiaries who acquire your property under the trust agreement by viewing the estate documents.
Your personal representative may be tempted to try to settle your estate without probate in an attempt to maintain privacy. A personal representative or executor, however, has little or no authority to act on behalf of a decedent’s estate until he has received authorization from the court in the form of Letters Testamentary. If a will is not probated, a personal representative cannot convey property that belonged to the decedent. Also if a will is not probated within five years in the state of Alabama, it may be considered invalid in court.
Generally probate records are not sealed by the courts. The courts have a duty to weigh the laws regarding public information against the laws protecting individual privacy before sealing court records. According to Alabama law, some records that may be sealed by the court are “ongoing criminal investigations, library circulation records, juvenile court records, probation reports, tax returns and financial statements, and records of suspected cases of certain diseases.”
References & Resources
- Alison: Code of Alabama, Section 36-12-40
- Chicago Title Insurance Company, Fraud Insights: No Probate, No Will = No Closing
- Baldwin County Judge of Probate: Probate Court
- Bloomberg Business Week: Estates, Keeping It All In The Family
- MSN Money: Fast Answers, Retirement & Wills
- Alison: Code of Alabama, Section 43-8-161
- State of Alabama, Department of Examiners of Public Accounts, Providing Access to Government Records
- State of Alabama: Public Officials: Your Records Responsibilities and the Law
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