B. Probate

The Supreme Court has not addressed whether probate records are presumptively open, but lower courts have extended a presumption of access. For example, the court in In re Estate of Campbell, 106 P.3d 1096, 1105 (Haw. 2005), held that “[a]lthough we have never expressly held that probate proceedings are accompanied by a presumption of openness, the reasons underlying openness in the criminal context . . . are equally compelling in the civil context, including probate proceedings.” And the court in Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 376 (1998) agreed, finding that ”[p]robate proceedings … are not closed proceedings.”

The Eleventh Circuit has not issued a definitive ruling regarding probate court materials.

No reported First Circuit cases identified.

The Second Circuit has not issued a definitive ruling regarding the publication of probate court materials. This will vary by jurisdiction.

Neither the Supreme Court nor the Third Circuit has addressed whether probate proceedings or records are presumptively open.

Nothing found specific to the Fifth Circuit.

No information.

There appears to be no Eighth Circuit case law discussing probate.

Under Alabama law, records of the office of the probate judge are “public writings” under Ala. Code § 36-12-40, and as such, are “free for examination by all persons, whether interested in the same or not.” Holland v. Eads, 614 So. 2d 1012, 1015 (Ala. 1993) (citing Kernells v. Ezell, 282 So. 2d 266, 268 (Ala. 1973)). Copies of various probate records can be obtained in exchange for specific fees. See Ala. Code § 12-19-90(b). See also Ala. Att’y Gen. Op. 2009-076 (opining that copying fees under § 12-19-90(b) may not be assessed when individuals use their own cameras or other electronic devices to make copies).

The court system must keep an Estate Index comprising all estate cases indexed alphabetically under the name of the person to whose estate the case relates, a Will Index comprising a list of all wills on deposit indexed alphabetically under the name of the person to whose will is deposited, a Protective Proceeding Index, an alphabetical index of all protective order proceedings kept under the names of the respondents, and a Registered Trust Index, an alphabetical list of all registered trusts will be kept under the name of the trust.  All of these indices are public records even though the files may be confidential.  Alaska Probate Rule 3(a), (b), (c), (e), (g). In addition, the court system must keep a Mental Commitment Index and a Judicial Bypass Proceeding Index, which are each confidential. Probate R. 3(d), (f), (g).

Matters in probate court are subject to the same access provisions as other courts under the Arizona Public Records law.  See generally Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268, 274, 159 P.3d 578, 584 (App. 2007) (finding that probate court had erred in denying media access to notice of claim in matter involving a conservatorship).

Administrative Order No. 6 states that probate matters in circuit court shall not be subject to broadcasting, recording, or photographing. Ark. Sup. Ct. Admin. Order No. 6(c)(3).

California recognizes a right of access to probate court files. See Estate of Hearst, 67 Cal. App. 3d 777, 784, 136 Cal. Rptr. 821 (1977). The court explained there that “[a]bsent strong countervailing reasons, the public has a legitimate interest and right of general access to court records, one of special importance when probate involves a large estate with on-going long-term trusts which reputedly administer and control a major publishing empire.” Id. The court remanded to the trial court to conduct a balancing of interests, explaining that “[i]f indeed it were established that beneficiaries of the Hearst trusts would be placed in serious danger of loss of life or property as a consequence of general public access to the Hearst probate files, then the court would have the power to protect the beneficiaries’ interests by temporarily denying public access to those files, in that protection of beneficiaries is one of the justifications for court jurisdiction over a testamentary trust.” Id. at 784-785. See also Appendix 1, Trial Court Records Manual, available at www.courts.ca.gov/documents/trial-court-records-manual.pdf (providing a complete list of court records designated confidential by statute or rule).

The Colorado Judicial Department’s Public Access to Court Records policy (pdf) excludes from public access “Probate Protected Proceedings,” including: Conservatorship-Adult or Minor; Conservatorship/Guardianship-Adult or Minor; Foreign Protected Proceeding; Guardianship-Adult or Minor; Other; Registration of Foreign Order; Single Transaction; and Uniform Veterans’ Guardianship Act. (See Section 4.60(b)(7).)

Probate proceedings (disposition of estates, trusts, whether a person needs a conservator or guardian, or commitment of adults for psychiatric or substance abuse disorder) are are exclusively a state court matter and are open by default, although certain aspects may be subject to closure by statute. Conn. R. Probate P. 16.1. They may be closed if “necessary to preserve an interest that overrides the public interest in open court proceedings,” “there are no reasonable alternatives to closure,” and closure “is no broader than necessary to protect the overriding interest.” Conn. R. Probate P. 16.8(a). The parties’ agreement to close the courtroom cannot suffice to order it closed. Conn. R. Probate P. 16.8(b).

Any order closing a probate proceeding must identify “the interest being protected that overrides the public interest in open court proceedings,” the “the alternatives to closure . . . that the court considered and the reasons why the alternatives were unavailable or inadequate,” the reasons why the closure order “is no broader than necessary to protect the interest that overrides the public interest,” and the “the scope and duration of the order.” Conn. R. Probate P. 16.8(c).

The D.C. Superior Court’s rules for the probate division exclude the following personal information from all filed documents: Social security numbers, drivers’ license numbers, dates of birth, and financial account numbers.  Super. Ct. R. Prob. Div. R. 109.

Probate records filed with the clerk of court are subject to disclosure absent a specific statutory provision or court rule that makes them confidential. Op. Att’y Gen. Fla. 89-94 (1989).

Probate inventories (including amended and supplemental inventories) and accountings are confidential and exempt from Section 119.07(1), Fla. Stat. and Section 24(a), Art. I of the State Constitution. Fla. Stat. § 733.604(1). However, these records may be disclosed to the personal representative, the attorney of record, or an “interested person,” as defined in Section 731.201(23), Florida Statutes, or by a court order upon a showing of good cause. Id.; see also Fla. R. Jud. Admin. 2.420(d)(1)(B)(xi) (noting that probate inventories must be automatically sealed by clerks).

Section 28.2221(5)(a), Florida Statutes, provides that the Clerk may not place an image or copy of a court file, record, or paper relating to matters or cases governed by the Florida Probate Rules on a publicly available website for general public display.

All Georgia probate court records are public unless public access is limited by law or the procedure set forth in Rule 4 of the Uniform Probate Court Rules. Rule 4 requires a motion and provides that an order limiting access shall not be granted except upon a finding that the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest. Further, any order of limitation entered by the court must specify the part of the file to which access is limited, the nature, and duration of the limitation, and the reason for limitation. See In Re: Motion of the Atlanta Journal Constitution, 271 Ga. 436, 438 (1999) (“In an order sealing a court record, a trial court must set forth factual findings that explain how a privacy invasion that may be suffered by a party or parties seeking to seal a record differs from the type of privacy invasion that is suffered by all parties in civil suits. Otherwise, the trial court is not justified in closing the record from public scrutiny.”); see also Sharpton v. Hall, 296 Ga. App. 251 (2009) (holding that the probate court did not abuse its discretion in unsealing records of guardianship and allowing estate administrator access to them).

The Hawai‘i Supreme Court has recognized that the presumption of openness applies to probate proceedings and records.  “[T]he reasons underlying openness in the criminal context . . . are equally compelling in the civil context . . . . We hold, then, that third parties have a right to file petitions challenging the closure of probate court proceedings or the sealing of court records under a principle of law supplementing the probate code.”  In re Estate of Campbell, 106 Hawai‘i 453, 462, 106 P.3d 1096, 1105 (2005).

Probate matters are handled under the Uniform Probate Code, Idaho Code § 15-1-101 et seq.  No cases, rules, or statutes on point.

There appears to be no reported Illinois case law on this issue.

Indiana Code Sections 29-1-7, et seq. governs probate. Nothing limits access to probate court, but certain records within probate proceedings may be confidential. For example, Administrative Rule 9(G)(2)(h) bars public access of complete account numbers of specific assets, loans, bank accounts, credit cards, and personal identification numbers. Note that Administrative Rule 9 includes probate courts. See Admin. Law 9(C)(4) (defining “Court” as including probate courts); 9(C)(5) (defining “Clerk of Court” as including Clerk of the Probate Court).

Prior to 2003 when it was repealed, Iowa Code § 633.15 stated that probate courts are “always open.” The effect of the repeal of Iowa Code § 633.15 is unclear, but it is likely that a right of access to probate courts exists under Iowa Code § 602.1601.

The Kansas Probate Code, K.S.A. 59-101, et. seq., specifies that proceedings and records are open to the public.  K.S.A. 59-212(a)(1) provides that courts shall keep appearance dockets “under the name of the decedent, ward, conservatee, mentally ill person, or other person involved, all documents pertaining thereto and in the order filed.”  Under K.S.A. 59-214, court records of probate proceedings are “open to inspection by all persons at all times.”  However, for proceedings involving adoption and the care and treatment of mentally ill persons, courts must maintain “separate appearance dockets, not open to public inspection.”  K.S.A. 59-212(a)(1).

Probate proceedings are generally open to the public under the principles set forth in Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988), and Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433 (Ky. Ct. App. 2014).

Probate records and hearings will be treated the same as other civil matters. See “Access to Civil Proceedings” and “Access to Civil Records” sections above.

Under Probate Rule 92.10(b), “Members of the general public and Registered Filers not affiliated with a matter shall have remote access to all Public Records in any matter, subject to the redaction of Private Information on Public Records pursuant to Rule 92.12.” (emphasis added).  The Advisory Committee explained:

Everyone, including members of the general public and Registered Filers not affiliated with a matter, will have remote access to all the Public Records, subject to the redaction of Social Security numbers of living individuals and banking/brokerage account numbers on Public Records as outlined in Private Information in Rule 92.12.

M.R. Prob. P. 92.10 advisory committee’s notes to 2011 amend., Nov. 2011 (emphasis added).

The Maine Rules of Probate Procedure identify a few categories of non-public records and information.  Rule 92.12(a) lists four types of “Private Records.” “‘Private Records’ means:

(1) all records and documents (electronic or nonelectronic) relating to an adoption proceeding;

(2) Certificates of Value (Probate Form DE-401A);

(3) Physicians’ and Psychologists’ Reports (Probate Form PP-505); and

(4) any record or document designated as a Private Record by the Probate Court.”

M.R. Prob. P. 92.12(a).  The Probate Rules also make confidential a few categories of information, labeled “Private Information”:

(1) Social Security numbers of living individuals;

(2) banking/brokerage account numbers; and

(3) any other information designated as Private Information by the Probate Court.  M.R. Prob. P. 92.12(c).  The burden of redacting this information from court filings falls on those responsible for making filings with the Court.

The registers of probate must maintain a docket of all probate cases and to make that information public.  “Registers of probate shall keep a docket of all probate cases and, under the appropriate heading of each case, make entries of each motion, order, decree and proceeding so that at all times the docket shows the exact condition of each case.”  18-C M.R.S. § 1-503.  The register is also empowered to audit accounts filed with the court when requested by a probate judge.  “Any register may act as an auditor of accounts when requested to do so by the judge . . . .”  Id.  All of these records are public.  “The register shall maintain records and files and provides copies of documents . . . .”  18-C M.R.S. § 1-305.  The register of probate is charged with making copies of “records of the court” and charging a fee for doing so.  18-C M.R.S. § 1-602(3).  The statute allows any member of the public to request copies.

Exceptions to this rule of public access include records of adoptions decreed on or after August 8, 1953, are generally confidential.  18-C M.R.S. § 9-310.  Further, “The Probate Court shall keep records of those adoptions segregated from all other court records.”  Id.  This segregation is necessary because other probate court records are public.  Information obtained as part of a background check on prospective adoptive parents is also generally confidential.  18-C M.R.S. § 9-304.  The court may seal the name of the petitioner and the adoptee in a decree containing the new name of the adoptee if the court determines that it is in the “best interest of the adoptee . . . .”  18-C M.R.S. § 9-308.2.

Certain wills filed with the court for safekeeping are also designated as confidential.  18-C M.R.S. § 2-514.  A will deposited with the court in the office of the register of probate before September 19, 1997, “may be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will.”  Id.  Further, “A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible and to ensure that it will be resealed and left on deposit after the examination.”  Id.

The probate court may also seal records of proceedings related to petitions for a name change.  18-C M.R.S. § 1-701.  The court may only do so to protect the personal safety of the person petitioning for a name change, where “[t]he person is currently in reasonable fear of the person’s safety.”  Id. at 1-701(2)(B).

The Maryland courts have not had occasion to consider access to probate courts.

Supplemental Probate and Family Court Rule 201 governs the court’s recording of proceedings and access to those recordings.

Massachusetts probate and family courts have impoundment rules that are similar to other Massachusetts trial courts. See generally Sean M. Dunphy, Impoundment, Probate Law and Practice, § 2.9 (21 Mass. Practice Series, 2d ed.) (overview of impoundment in Massachusetts probate courts).

Probate and family courts largely adhere to the Uniform Rules on Impoundment Procedure, with some exceptions and some additional rules. See, e.g., Probate and Family Court Standing Order 1-15 (“Application of Rule 13(b) of the Uniform Rules of Impoundment Procedure to the Probate and Family Court”); Probate and Family Court Standing Order 1-09 (“Impoundment of personal medical information”); Probate and Family Court Standing Order 3-08 (“Impoundment of qualified domestic relations orders”); Probate and Family Court Standing Order 2-08 (“Impoundment of guardian ad litem reports”). In determining whether impoundment is appropriate, probate and family courts conduct “good cause” balancing tests as other Massachusetts courts do. See Sean M. Dunphy, Impoundment, Probate Law and Practice, § 2.9 n.1 (21 Mass. Practice Series, 2d ed.) (collecting cases).

“[E]xcept as expressly provided, judicial records of G.L. c. 209A [domestic abuse prevention] proceedings are presumptively open.” Boston Herald, Inc. v. Sharpe, 737 N.E.2d 859, 870 (Mass. 2000), rev’d on other grounds, Janes v. Commonwealth, 436 Mass. 1010 (2002).

Probate courts in Michigan fall under the general presumption of openness of all Michigan courts pursuant to M.C.L. 600.1420. Research revealed no case law on point regarding probate proceedings specifically.

Probate records are presumed public unless otherwise indicated by court rules or statutes. M.C.R. 5.101.

Research did not reveal any opinion where a Minnesota court addressed this issue.

Open.

Probate cases follow the general civil rules, discussed in “Access to civil proceedings” above.

The right of access, discussed in “Overcoming a presumption of openness” above, applies to probate proceedings. See also Probate Court Rule 169-A. Access to Confidential Records -- Fees and Notice: “Any person or entity not otherwise entitled to access may file a motion or petition to gain access to any sealed or confidential court record. See Petition of Keene Sentinel, 136 N.H. 121 (1992).”

Each of New Mexico's 33 counties has a Probate Court, with one judge sitting in each court. The probate clerks of the different counties are required to keep a record book for the sole purpose of keeping an exact account, showing all the money received and specifying the object for which it was received. The same book contains a list of all warrants issued against the county treasury, and for what purpose. NMSA 1978, § 34-7-17. Within the book resides a copy of the accounts for the current year, which is open to the inspection of any citizen who may wish to examine it. NMSA 1978, § 34-7-18. Finally, the New Mexico probate courts are deemed to be always open and a complete record of its proceedings shall be kept as in other cases. See NMSA 1978, § 63-2-3.

Ohio courts and the Rules of Superintendence for the Courts of Ohio do not address right of public or media access to probate proceedings.  However, court records are generally presumed open to public access.  Sup.R. 45(A).

Wills in probate are publicly accessible. Probate proceedings and records are subject to the same rights, laws, and rules regulating access as other civil proceedings and records.

In Dauray v. Estate of Mee, the Rhode Island Superior Court addressed a motion to modify a protective order entered by a probate judge despite the fact that the order had not been properly appealed to the Superior Court.  See No. PB-10-1195, 2013 WL 372647, at *8, 2013 R.I. Super. LEXIS 19, at *22 (R.I. Super. Ct. Jan. 23, 2013).  However, the Court’s analysis finding that the requested records were “judicial records,” is likely to be highly persuasive in an attempt to access similar records at the probate court level.  This is bolstered by the fact that Rhode Island law makes the Rhode Island Superior Court Rules of Civil Procedure optionally applicable in probate court proceedings.  R.I. Gen. Laws § 33-22-19.2(c) (“In all contested matters, the Rhode Island Superior Court Rules of Civil Procedure may be applied.”).

Probate courts are courts of record that handle estate matters, guardianships and conservatorships, and competency proceedings and issue marriage licenses. Some probate courts also preside over treatment courts.

Except as otherwise provided by law, probate court records are subject to inspection by any interested person. S.C. Code Ann. § 14-23-1120.  The South Carolina Supreme Court also has issued an administrative order in regards to the records retention policy for probate courts at: https://www.sccourts.org/courtOrders/displayOrder.cfm?orderNo=2014-05-23-02.

Estate proceedings in probate court are open to the public under the First Amendment and Ex parte Island Packet, 417 S.E.2d 575 (S.C. 1992), which sets forth the elements in determining whether a court proceeding should be open to the public. Guardianship and conservatorship proceedings can be limited to the public under S.C. Code Ann. § 30-4-40(a)(2), which limits the disclosure of information that would constitute an unreasonable invasion of privacy, including information related to the name and contact information for individuals with disabilities.

The Tennessee courts have not had occasion to consider access to probate courts.

Texas courts have not expressly addressed whether probate records are subject to the typical presumption of openness.  However, the Texas Probate Code requires county clerks to maintain a record for each estate where a probate proceeding has been filed.  See Tex. Estates Code Ann. § 52.052.  These records must be properly indexed, and the county clerks must keep the indexes open for public inspection.  See id. § 52.053.

No Utah authority specifically addresses access to probate proceedings.

The Vermont Rules of Probate Procedure provide that “hearings upon the merits of a contested matter shall be open” unless the hearing involves the appointment of a guardian for a minor, in which case the court may exclude any person other than the parties, their counsel or witnesses and other persons accompanying a party to assist that party. V.R.P.P. Rule 77(b).  Rule 77 also provides that “[a]ll records of the court are open to public inspection except the following:

(1)  A will deposited in the office of the register for safe-keeping pursuant to law;

(2)  The index of wills deposited for safe-keeping;

(3)  Papers pertaining to an adoption, including the docket entries made by the register and the index cards for adoption cases;

(4)  A written relinquishment or surrender of a minor child and papers pertaining thereto;

(5)  All mental health evaluations submitted by a mental health professional pursuant to 14 V.S.A. §§ 3067, 3068.

Id. at (e).

Similarly, the Vermont Rules for Public Access to Court Records contain exceptions to the general right of public access for several categories of probate court records:

• “Records on file with the probate court in connection with an adoption proceeding, unless disclosure is authorized pursuant to Article 6 of Title 15A.” Pub. Acc. Ct. Rec. Rule 6(b)(1);
• “Records on file with the probate court in connection with a guardianship proceeding governed by 14 V.S.A. § 3068, if the court finds that the respondent is not mentally disabled.” Pub. Acc. Ct. Rec. Rule 6(b)(22);
• “An evaluation submitted by a mental health professional to the probate court under 14 V.S.A. § 3067, in connection with a guardianship proceeding governed by that section.” Pub. Acc. Ct. Rec. Rule 6(b)(23);
• “A will deposited with the probate court for safekeeping, and indices thereof, as provided by 14 V.S.A. § 2 and Rule 77(e) of the Vermont Rules of Probate Procedure.” Pub. Acc. Ct. Rec. Rule 6(b)(25).

The public has a right of access to court proceedings, and any limitations are subject to the five-factor Bone-Club/Ishikawa test.  Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861, 866 (2004).

West Virginia does not have separate probate courts. Objections to the probate of a will can go before the county commission with circuit court review or directly to the circuit court.

The probate process occurs in the county where the decedent lived at the time of death, and probate documents are filed with the county clerk’s office. Members of the public have access to any probate document considered to be a public record, including orders from matters heard by fiduciary commissioners (not recorded but in the estate file) or recorded orders by county commissions if there is an objection to a will or if a fiduciary commissioner is removed. The non-probate inventory is not considered to be a public record. Mechanisms to access documents vary by county.

Wis. Stat. chapter 879 on probate contains no specific provisions on open courtrooms. Hence, probate proceedings are subject to the general openness mandated by Wis. Stat. § 757.14 and case law interpreting it.