One of the major features of the Surrogate’s Court is that it is a court of public record. Unfortunately, that can be one of its major drawbacks. Every document filed in every estate is available to anyone. If your grandfather (great grandfather) passed away here in the twenties, his Will together with lots of information about your family is there for all to see. Great if you are a history buff or looking for information about your ancestors but not so great if you would like to keep private stuff private. An example of this can be seen after the recent celebrity deaths of Philip Seymour Hoffman, Lou Reed and James Gandolfini. All of the minute details of their estate planning (or lack of same) are on public display.
All of this could be avoided with a trust since that would be a private document available only to those with standing. For those who fear that their heirs might upset their estate plan by challenging their wills in court, the trust is a simple way to avoid all of that. The Settlor, or creator of the trust determines how his or her assets will be managed while alive –and how they will be distributed at death. No probate. No need to hunt down distributees (family members who would inherit if there was no will). No lengthy proceedings to admit a Will to probate. Nobody to object to what you have done after deciding how to set up your estate. And there is total privacy and protection from family members, friends and (if you are a celebrity) gawkers who harbor an internal desire to find out about someone else’s business.
Not to say that trusts do not have their own drawbacks. Sometimes time alters plans for how one had hoped to manage financial and family affairs. Sometimes tax laws change dramatically as witness the roller coaster ride of our federal credit shelter limit over the past decade. Things get lots harder to change after a death occurs and the revocable trust becomes basically irrevocable.
Before deciding on a Will or a Trust, best to spend some quality time with your financial advisor, your accountant and, of course, your attorney.