Should Trusts Remain Off the Public Record?

Frances H. Foster (Edward T. Foote II Professor of Law, Washington University School of Law) continues her study of trust privacy with the recent publication of her article entitled Trust Privacy, 93 Cornell L. Rev. 555 (2008).

Here is an excerpt from her article:

This Article reconsiders the very notion of trust privacy. It does so through a humanistic approach that essentially looks beyond abstractions to consider the actual effect of laws on people. Part I sets out the conventional rationale for treating wills as public record but allowing will-like revocable trusts to remain private. The remainder of the Article addresses the basic question reformers have failed to discuss: Should trusts be private? It sets out possible arguments for and against trust privacy. Parts II and III show that although privacy confers important human benefits, it also imposes significant human costs that reformers have largely ignored. In presenting the human impact of trust privacy, the Article hopes to inspire a more nuanced and balanced approach to reform. Part IV attempts to begin that process by considering four possible future directions for reform and their responses to the human costs of trust privacy.