Last wills and living trusts are used in estate planning to ensure a person's loved ones receive assets of the estate after her death. The type of estate planning measures used depends on a variety of factors, like the size of the estate, the number of heirs and the person's private wishes. Both living trusts and wills may be recorded, but the place and time varies by the reason for the recording.
A will is a document detailing the last wishes and asset distribution to heirs of the person writing the will, or testator. The testator drafts, signs and may file the will while still living for safekeeping in the probate or surrogate's court office with jurisdiction over the county the person lives in. Once the person is deceased, the recorded will becomes a matter of public record. A will filed after the person's death may be viewed by the public. An attorney or estate representative may file a will in the county recorder or clerk's office where the deceased person owned real estate to settle questions about legal ownership if the will was probated in a different county.
Read More: Definition of Trust Agreement
A trust is an agreement that specifies how a person's property is managed and distributed during the person's lifetime and after death. The trustor -- the creator of the trust -- drafts the agreement while still living and selects a trustee, the person who manages the trust. Trusts do not necessarily have to be recorded; however, recording the agreement in the county recorder or clerk's office may be necessary if the trust is transferring ownership of real estate in some states.
Wills are required to have certain language present and adhere to requirements under state law, but the content and directions vary by person. Some wills contain specific bequests, leaving particular items to named heirs, while others are general, leaving all property to one or more heirs. A will recorded in the probate court or recorder's office may be seen by the public regardless of the content, but other parts of the estate, like the estate inventory, may be sealed if the court allows.
A living trust falls into one of two categories: revocable or irrevocable. Revocable trusts may be ended by the trustor at any time, while irrevocable trusts may not be terminated. The trust type used is the trustor's decision, but financial considerations and estate size may influence the selection. Both trust types may be recorded in the county clerk or recorder's office, but the full trust agreement may not be needed and sensitive personal information may be redacted.
A will filed for safekeeping in court cannot be viewed by the public until after the person's death, but the person or an appointed representative may view the will. Filing the will for safekeeping may deter questions about the testator's signature and mental capacity during probate proceedings.
Recording a living trust in the land records may avoid questions about the trust agreement directions and the trustee's authority later, such as when the trustee wishes to mortgage trust property. A certified copy of the recorded trust agreement may serve as proof of its existence if the original documents are lost.
A last will that has been filed may be revoked while the person is living. A new will including a statement revoking all prior wills must be filed. Some filed wills are revoked by state laws after the person dies, like when the will is older and leaves everything to a now ex-spouse. Previously recorded wills may be seen by the public.
Irrevocable trusts may be revoked, even if recorded, under special circumstances. A trustee who is stealing from the estate may be a legal basis for the trustor to obtain a court-ordered revocation.
Anna Assad began writing professionally in 1999 and has published several legal articles for various websites. She has an extensive real estate and criminal legal background. She also tutored in English for nearly eight years, attended Buffalo State College for paralegal studies and accounting, and minored in English literature, receiving a Bachelor of Arts.