Secrecy in Trust Litigation

Here is the link to their article with the following abstract:

The right to transfer property is a core part of ownership’s “bundle of sticks.” To effect a transfer, property owners can choose from among several conveyance forms, some offering greater privacy than others. While real property deeds must be recorded and wills often require court-supervised probate administration, trusts have long been the centerpiece of American estate plans because they can come into being during lifetime and pass assets outside of the court system at death. But traditionally, there has been one exception to the general rule that trusts operate privately. When a trust sparks litigation or otherwise needs judicial intervention, the case has been subject to the same public accessibility principles that apply across the civil justice landscape. These open hearings and dockets help demystify the mechanics of wealth transfer in the U.S.

This Article exposes a trend that is quietly undermining the norm of public access to trust proceedings: To attract a lucrative cottage industry of trust businesses, some states have enacted legislation that automatically seals trust cases. This unprecedented level of secrecy poses a threat to court transparency and, more broadly, to the integrity of the wealth transfer process. The Article uses these new laws as a springboard to discuss what the law governing secrecy in trust cases is and should be. It considers how the public’s right to access court proceedings imposes constraints on statutes that authorize or mandate automatic sealing of trust proceedings without individualized review and on ad hoc sealing in individual trust cases. The Article concludes by arguing that some of the novel “super-sealing” statutes are likely unconstitutional, represent bad public policy, are not strictly enforced by courts, and may undermine the competitive regulatory advantage of trust haven jurisdictions in the long run. It also offers prescriptions for courts dealing with requests for ad hoc sealing in trust disputes.