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Let's say a father has two sons and he creates a will. He leaves something to son A and something else to son B. He doesn't want either of the sons to know the amount the other gets.

And let's assume neither of the sons are aware of the total amount in order to figure out the other's portion of the inheritance. We can introduce more than 2 sons to remove the assumption of the sons' unawareness of the total.

Is it possible to create a will like that? I am in the United States. If it varies by state, could you share examples of states with different answers?

CLARIFICATIONS:

  1. The father doesn't want his executor to disclose son A's inheritance to son B and vice versa. If the sons want to share this information between them, that's their choice.

  2. The will is a complete secret from his family until his death.

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    Do you mean, "and can he legally keep it secret"? And if so, please rewrite the question.
    – user6726
    Jun 30, 2016 at 5:16
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    In general, a will becomes a public record when it is filed with the court. See info.legalzoom.com/wills-public-records-3727.html. So if this is possible at all, it would need some sort of unusual process. Jun 30, 2016 at 13:46
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    Noting @NateEldredge's comment, I would like to ask whether the father wants each of the sons never to know how much the other inherited, or if he merely wants to keep this information from them while he is alive.
    – phoog
    Jul 1, 2016 at 0:45
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    @Rusty you are mistaken. A will is not simply an agreement, indeed it usually isn't an agreement. It is a unilateral statement of intentions by a single individual and is subject to regulation through the probate process. The wording that a will's terms not be disclosed to interested parties would not be honored by a court.
    – ohwilleke
    Nov 12, 2016 at 6:56
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    "The will is a complete secret for his family until his death." Just to add, while it is perfectly legal to do this, as a counselor of this client, I would advise the client that it is very unwise to do so. Wills whose terms are disclosed prior to death are much, much less likely to be contested (i.e. it virtually never happens), than wills kept secret until death (probably 90%+ of will contests involve wills whose terms are not disclosed prior to death).
    – ohwilleke
    Jan 7, 2017 at 0:04

1 Answer 1

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FIRST: A last will and testament does not have to be disclosed to anyone [1] prior to death.

But at death, notice of the commencement of a probate proceeding which is necessary for the will to be given effect must generally be given to: (1) everyone who takes under the will, and (2) everyone who would take if either that particular version of the will were invalid and a prior will that it revokes is valid, and (3) everyone who would take if there were no valid will, and (4) creditors whose claims are accepted as valid, but are not paid due to the insolvency of the probate estate.

Everyone entitled to notice of the probate of a will is entitled to see the last will and testament submitted to the court in its entirety.

The case could be placed under seal to prevent people other than interested parties and their lawyers from seeing the will, but not sons of a decedent who are interested parties by definition even if they get nothing under the will, because they would take if there was no will.

SECOND: This said, it is easy to make a secret transfer effective upon death via a variety of non-probate transfers such as a beneficiary designation on an account, or the provisions of a trust, that don't require a court proceedings to take effect the way that a will does (people who think that they can avoid probate by having a will are fundamentally mistaken, probate is a court proceeding necessary to give a will legal effect).

Only some of these methods of making a secret gift work if the estate is subject to estate taxes which requires disclosures to be made on gift and estate tax returns of all transfers taking effect at death (something that can be circumvented by making a transfer during life that is not reportable during life because it is within some exception to gift taxation).

NOTES:

[1] Usually a will has to be shown to the two witnesses to a will, unless it is executed under the recently repealed Louisiana law allowing for a "mystic will" which has seven people witness the envelope but no one witness the will itself prior to death. Of course, holographic wills, substantially in the handwriting of the person writing them, don't have to be witnessed at all.

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    In England, the witnesses do not have to see the will: they are specifically witnessing the signature, and the will may be covered over if the testator so wishes. But jurisdictions vary; that's really the point of this comment. Jan 6, 2017 at 23:56
  • California has another exception to witnesses for will. A will written entirely in the author's own hand (not typed) and signed is valid without any witnesses.
    – Joshua
    Jun 6, 2023 at 17:22
  • @Joshua Updated to reflect that observation.
    – ohwilleke
    Jun 6, 2023 at 17:27

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