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Privacy Pitfalls: How Lack of Planning Can Expose Your Estate to Public Scrutiny

Posted by James Burns | Apr 16, 2024 | 0 Comments

In today's digital age, privacy has become a precious commodity. According to a survey by Pew Research Center, about 93% of adults say that being in control of who can get information about them is important. Yet, many overlook how estate planning—or the lack thereof—can significantly affect their privacy after they pass away. A well-structured estate plan is crucial not just for asset distribution but also for maintaining discretion over one's affairs.

1. The Importance of a Will

Mistake to Avoid: Many believe that not having a large estate negates the need for a will. This misconception can lead to your estate going through probate, a public process where your assets, debts, and beneficiaries are laid bare for public record.

Actionable Tip: Always draft a will, regardless of your estate's size. This document should clearly outline your asset distribution wishes and designate an executor.

Example: Consider the case of Thomas, a California resident with a modest estate. He assumed his assets would automatically transfer to his wife, so he never drafted a will. Upon his unexpected death, his assets went into probate, and details of his finances became accessible, causing distress to his family.

2. Trusts for Enhanced Privacy

Mistake to Avoid: Assuming that all trusts become part of the public record upon the grantor's death. Many people mistakenly believe that like wills, all trusts will be scrutinized publicly when they become irrevocable. In California, the Probate Code section 15400 states that unless otherwise decreed a trust is revocable.

Actionable Tip: Utilize trusts to ensure your estate remains private. Assets transferred into a revocable or irrevocable trust are not subject to probate and thus are not made public through court documents. These types of trusts shield the assets from public view, maintaining confidentiality even after the grantor's death.

Example: Emily, a successful business owner in California, set up an irrevocable trust to manage her substantial assets. By doing so, she ensured that details of her wealth and how she chose to distribute her assets would remain private and out of the public record. Unlike probate assets, which are publicly documented, Emily's trust activities remained confidential, safeguarding her family's privacy and financial interests.

Relevant Law: Under California law, trusts, especially irrevocable ones, do not require filing with the court and thus do not become public record unless there is litigation involving the trust. This legal structure provides a strong layer of privacy, contrasting sharply with the probate process that applies to wills.


3. The Role of Powers of Attorney

Mistake to Avoid: Neglecting to appoint a financial power of attorney. Without this, in the event of your incapacitation, your financial decisions may be made by a court-appointed conservator, again open to public scrutiny.

Actionable Tip: Appoint a trusted individual as your durable financial power of attorney to manage your financial affairs discreetly if you cannot.

Example: When John, a real estate investor in Irvine, became incapacitated due to illness, his daughter, whom he had designated as his durable power of attorney, managed his estate privately, avoiding the need for a conservatorship that would have made his estate matters public.

4. Digital Assets and Privacy

Mistake to Avoid: Overlooking digital assets such as social media, online banking, and email accounts in estate planning can lead to complications and unwanted public exposure.

Actionable Tip: Include digital assets in your estate plan and specify how and to whom these should be managed or transferred.

Example: Linda included detailed instructions for her digital assets in her estate plan, ensuring her online presence was handled according to her wishes, avoiding potential breaches of privacy that could have arisen from public email content or social media accounts.

Additional Example: Roger failed to account for his digital assets, leaving his family unable to access critical financial accounts and personal emails. This led to a lengthy legal process, which inadvertently publicized assets he had hoped to keep private.

5. Updating Estate Plans Regularly

Mistake to Avoid: Failing to update your estate plan as life circumstances change, which can lead to outdated instructions and unintended beneficiaries.

Actionable Tip: Review and update your estate plan at least every five years or after major life events like marriage, divorce, or the birth of a child.

Example: Sarah reviewed her estate plan regularly, which allowed her to adjust her instructions following her divorce and the sale of her business. This proactive approach kept her estate plan current and aligned with her wishes, safeguarding her privacy and ensuring smooth asset distribution.


Estate planning is not just about distributing your assets; it's also about protecting your privacy and that of your family. By avoiding common mistakes and implementing strategic planning, you can ensure your affairs remain private and are handled according to your wishes.

Taking Action

If you're ready to take the next step in protecting your privacy through careful estate planning, contact the Law Office of James Burns. With over 24 years of experience, James Burns can provide expert guidance tailored to your unique needs. Don't leave your estate to public scrutiny—plan wisely and protect your legacy. Call us today at (949) 305-8642 or visit to schedule your consultation.

About the Author

James Burns

Estate Planning, Asset Protection, Business and Real Estate Transactions, nutraceutical Law and franchising:


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