A client from Manhattan recently asked me, “If I create a trust, does it get filed with the state? I don’t want my family’s affairs on public display.” It’s a question I hear often, and it gets to the heart of why many people choose a trust over a will. For most trusts we create, the answer is no. A properly drafted living trust is a private document.
This privacy is not a loophole—it’s a fundamental feature. Unlike a will, which becomes a public record once submitted for probate to the Surrogate’s Court, a revocable or irrevocable living trust is a private contract. It’s an agreement between the grantor (the person creating the trust) and the trustee (the person or entity managing it). There is no state or city registry for these documents. The terms, the assets, and the beneficiaries remain confidential.
This confidentiality is one of the most significant distinctions between a will-based estate plan and a trust-based one. Stewardship of a family’s legacy often requires discretion, and a trust provides that.
When a Trust Intersects with Public Records
While the trust agreement itself remains private, its existence can sometimes appear in public records. The most common instance involves real estate.
When you transfer your home or other property into a trust, we must record a new deed with the county clerk. That deed is a public document. It will state that the property is no longer owned by you as an individual, but by you as the trustee of your trust—for example, “John Smith, as Trustee of the John Smith Revocable Trust.”
However, only the deed is public. The trust agreement—the document that details your beneficiaries, how assets should be managed, and your distribution plans—is not attached to the deed and is not filed. The public knows the trust exists and owns the property, but the private instructions that govern it are not disclosed.
The other primary way a trust can become public is through litigation. If a dispute arises and a lawsuit is filed concerning the trust’s administration, the trust document may be entered as an exhibit in court. At that point, it becomes part of the public court file. This is a contingency, not a certainty.
The Exception: Testamentary Trusts
There is one major category of trust that is not private: a testamentary trust. This is a trust created within the terms of a Last Will and Testament. It does not come into existence until after the grantor dies and their will is admitted to probate.
Because the will itself must be filed with the Surrogate’s Court, the trust provisions contained within it become part of the public record. The entire probate process is overseen by the court, as outlined in Article 14 of the Surrogate’s Court Procedure Act (SCPA). Anyone can go to the courthouse, request the probate file, and read the terms of the will—including the full text of any testamentary trust it creates.
This is a critical distinction. Families who prioritize privacy will almost always use a living trust (an inter vivos trust) precisely to avoid the public nature of the probate process.
A Trustee’s Fiduciary Duty of Confidentiality
The privacy of a living trust is not just a passive feature; it is an active obligation. A trustee has a fiduciary duty to the beneficiaries of the trust. This duty requires them to act in the beneficiaries’ best interests—a responsibility that includes confidentiality.
A trustee must not share the terms of the trust or details about its assets with the public or with those not entitled to the information. This legal duty binds them to be a prudent and discreet custodian of both the trust’s assets and its private information. While beneficiaries have a right to certain information about the trust’s administration, that disclosure is carefully managed and does not extend to the general public.
This legal duty reinforces the private nature of the trust, making it a reliable instrument for families who wish to manage the transition of generational wealth with intention and discretion.
The decision between a will and a trust often comes down to this question of privacy versus public disclosure. If you are weighing these options, a productive first step is to outline your assets and beneficiaries to determine which information requires confidentiality. We can then review that outline to discuss the appropriate structure for your family’s legacy.
