Privacy in Probate

Is there privacy in probate?

An often-asked question from potential clients is whether probate matters can remain private and protected from the public eye.  Most people want their personal family and financial affairs to stay private.

But, if you have a will, it must be deposited (filed) with the probate court after your death.  (To be technical, the custodian of a will must deposit it with the court within 10 days of receiving information of the testator’s death, per Fla. Stat. 732.901.) Once filed, your will, and other associated documents including many of the filings for your probate, become public records. 

Then your information can be accessed by anyone – friends, relatives, nosy neighbors, former spouses, and unfortunately even thieves. 

The information which is in the public view is not just the identity of your beneficiaries and their inheritances, but would also reveal who is omitted from the estate plan and the reasons why (which may even be set forth in the will).  Provisions about the value of the estate assets may be included in the public record as well, although the estate’s inventory itself is one of the few exceptions and kept confidential from public record (see Fla. Stat. 733.604).

While sealing (or keeping confidential) public probate records is possible, it is a complicated process involving certain proof to the Court and is rarely granted.  Florida Rule of Judicial Administration 2.420 permits specific kinds of court records to be sealed as confidential, under particular circumstances and in following particular procedures.  Unfortunately, due to this lack of privacy in probate cases, some of the issues that come up include (1) unsolicited advertising (including selling probate information for estate-related services) as well as real estate investors or buyers), as well as (2) identity theft.

Buying and selling probate information can be profitable because the information in the public records can be obtained by companies, manipulated for selling of items or services, and then sent out.  Shockingly, even the format of these types of mailings can look similar to official court-like documents.  What beneficiaries and even the estate’s personal representative may see are companies looking to provide estate-related services like tangible property liquidation services, housecleaning services, and the like.  In addition, companies may look to purchase cars, do home improvements, or provide cash advances for inheritances.  These sales or services may even specify their willingness to advance the up-front costs, with their fee being a percentage of the inheritance.  These sometimes appeal to people’s desire to obtain money now (i.e., playing on people’s desires for instant gratification) without waiting for the probate process to be completed. 

It is also not uncommon for real estate buyers or investors to contact those involved in probate: the personal representative, their counsel, or the beneficiaries receive phone calls and emails from potential real estate buyers or investors.  How can this be? Real estate investors look through public records for properties of decedents, and then make inquiry on what the estate may look to sell.  One thing to watch out for in these situations is that property is not sold for less than its value or selling faster than would be within the ordinary course. 

As with both prospective real estate investors and unsolicited advertisements, the personal representative has the duty to make decisions regarding the probate’s assets and the estate, the timing of which is to be made prior to distributions being made.  Estate inventories and appraisals are important in this regard, as well as so that beneficiaries can know what their inheritance would be. 

One final thing to look out for is identity theft, and probate is an unfortunate way for a deceased individual’s identity to be stolen.  One instance is in obtaining credit and using it for purchases in the decedent’s name, particularly someone who recently died, and the credit bureaus who would approve the credit cards or lines of credit have not yet received notification of the person’s death.  What does happen in these instances is the estate’s personal representative is left to obtain credit reports for the decedent and dispute any such credit obtained or purchases made as not being valid debts of the decedent. Credit card companies or credit line companies may even file claims in the decedent’s estate looking for payment; if contested, these disputes can lead to litigation. 

Any of these issues are important points of discussion with your trusted probate lawyer.