Where Are Last Wills and Trusts Recorded?

By Stephanie Kurose, J.D.

Where Are Last Wills and Trusts Recorded?

By Stephanie Kurose, J.D.

Wills and living trusts are two types of estate planning tools that help ensure a person's loved ones are taken care of after their death. While they are similar in some aspects—they are both tools a person can use to transfer their property to designated beneficiaries—they also serve different purposes depending on a person's private wishes. If you would like more information on estate planning tools, you can use an online service provider.

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Last Will and Testament Basics

A will is a legal document drafted by a "testator" that describes their last wishes and how and to whom they would like their property distributed upon their death. Each state has its own requirements for what it considers a valid will, but most states require that the will is in writing and signed by the testator in front of two witnesses, who must also sign the will in front of the testator.

Where to Record a Will

The testator may, though this is not a requirement, file their will for safekeeping while they are still alive in the probate or surrogate court's office in their county. As long as the testator is living, the public cannot access their will; only the testator or an appointed representative may view the will.

During this time, even if the testator has already filed the will, the testator may revoke or amend their will. However, once the testator dies, the will becomes irrevocable and available for anyone to view. Upon the testator's death, their will must be filed with the court to start the probate process.

Living Trust Basics

A living trust is another estate planning tool that allows its creator, called the settlor, to transfer certain assets into it before their distribution to named beneficiaries. A trustee, often the settlor until their death, manages the trust on behalf of any beneficiaries. Trust property can be distributed during the settlor's lifetime or after their death, depending on the terms of the trust agreement. Any property held in trust bypasses the probate process and passes directly to the named beneficiaries according to the trust agreement.

Living trusts generally fall into two categories: revocable and irrevocable. Revocable trusts allow the settlor to terminate or amend the trust at any time. By contrast, the settlor cannot terminate or modify an irrevocable trust at any point.

Where to Record a Trust

It is not necessary to record a trust. However, if you want to record your trust, you may do so at your county recorder or clerk's office.

One of the benefits of a trust is that it affords the settlor a level of privacy that a will does not. A trust never becomes a matter of public record, unless it ends up being the subject of litigation. Absent that scenario, the only people who have access to the trust are the trustee and any beneficiaries.

There are certain circumstances where information about the trust must be made available. For instance, sometimes banks need to ensure the trust is legitimate before allowing certain transactions, or if you transfer real estate into or out of the trust, basic information about the trust must be recorded along with the real estate deed. However, these typically only require basic information, such as the name and date of the trust, the settlor's name, and the trustee's name and powers. Thus, any private or sensitive information remains protected.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.