Are Wills Open to the Public?

by Teo Spengler
Visit the court clerk to view a probated will.

Visit the court clerk to view a probated will.

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Wills are open to the public after they go into effect, not before. A will is the written description of how the person making the will -- the testator -- wants her property distributed after her death. Since states regulate wills, procedural requirements vary, but every jurisdiction treats wills as private during the life of the testator. Once the testator dies, however, her will moves into the public realm.

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Executed Wills

A testator may draft dozens of wills during her lifetime, but generally, only one is effective -- the one she drafted latest in life, closest to her death. Since a will identifies the testator's chosen heirs, she may amend or rewrite her will as people move into and out of her life. Marriages, divorces, deaths, births and adoptions trigger new testaments. Each of these wills remains the private property of the testator while she lives.

Effective Wills

Since by definition, wills pass property at death, no will is effective until the testator dies. A living testator supersedes one will by writing another or simply cancels a will by throwing it in the fire. At death, however, further amendment is impossible. The latest will -- if proved valid -- is effective and provides the structure for distribution of property to heirs. Courts supervise asset distribution in a process called probate and the moment the will is a court document, it becomes a public document.

Probated Wills

Most testators name executors in their wills. An executor captains the will through the straits of probate. He usually files the will with the probate court -- although heirs also can do this -- and petitions for the court to open probate. The court grants the petition if the deceased resided in the jurisdiction during her lifetime. The executor then collects and inventories assets, contacts heirs, pays estate debts and finally distributes the property, all under the watchful eye of the court. During the probate process, the will is a court document, open to public viewing.

Post-Probated Wills

Once the court approves the executor's plan for property distribution, the executor releases all remaining assets to the heirs and closes probate. The court does not dispose of the probate file, however. Courts retain all files even after they are closed, either on computer, on microfilm or in original form. A member of the public views old or archived files either at the court clerk's office or by visiting an archived-file office. The court clerk provides information about how to proceed.