The Price of Privacy at Death

In the United States, privacy at death is not a right; privacy at death is a privilege purchased through the use of a trust. The legal system grants privacy at death but only to those who can afford it. The vast majority of Americans, those who devise their assets through wills or die intestate, must engage in a public probate proceeding that exposes the details of their estates to the public. The result is a dual-track system of succession-one that sells privacy to the ultra-wealthy and one that requires full transparency for everyone else. Over the past two decades, state legislatures and courts have strengthened estate privacy in trust law by eliminating trust registration requirements, enhancing protections of trusts in land records, and creating silent and perpetual trusts. These reforms have been lauded as promoting efficiency and honoring decedent intent. They have been adopted with little public scrutiny and have disproportionately benefited wealthier individuals, enabling the transfer of assets in secrecy and (in some cases) facilitating fraud, abuse, and/or lack of accountability. This article examines the legal and policy foundations of trust and estate privacy, highlighting how the current system exacerbates economic inequality and denies privacy at death to most Americans. It advocates for reform to both curb abuse and expand privacy interests after death. First, the article proposes requiring modest disclosures in trust administration to protect beneficiaries and deter misconduct. Second, it argues that privacy protections should be expanded for those who use the probate system. By addressing the asymmetries in privacy access at death and proposing reforms on both sides of the succession divide, this Article offers a new framework for evaluating the role of privacy at death. With trust law increasingly becoming the domain of the wealthy and probate records increasingly becoming digitized and easily searchable, this is a pivotal moment to grant privacy at death to all.