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How Does Pre-Death Probate Work?

People reviewing documents“There are a handful of states that allow a person to probate a will…before the testator… dies. In recent years, there has been a trend to expand this practice to more states.”

This practice, which lets challengers contest the validity of a will before the person who created the will passes away, is explained by Trust Advisor in its recent article, “10 Arguments Against Pre-Death Probate and Will Contests.”

This concept of Pre-Death Probate, or “Ante-mortem Probate,” is only allowed in four states—Ohio, Arkansas, North Dakota, and Alaska. Why don’t more states allow it? It is because of the long-standing legal notion that that a will doesn’t “speak” (or take effect) until the testator’s has died.

You usually can’t bring a suit until the testator dies, because no one has legal standing to contest the will prior to the testator’s death. The trend away from this traditional rule started some years ago.

Recently, a few states have introduced legislation to permit ante-mortem probate and ante-mortem will contests. Ante-mortem probate procedures vary by state, but they generally allow a testator to seek a ruling from the court, while he or she is still living, that his or her will is legally valid. Every heir named in the will must be named as a party to the lawsuit.  Therefore, it binds any potential challengers to the court’s verdict and keeps them from contesting the will when the testator dies.

Those in favor of ante-mortem probate say that there are several benefits to the practice, including: (i) providing certainty and avoiding family disputes after death; (ii) ensuring that the testator can testify in favor of the will; and (iii) discouraging challenges to a will, because if a person opposes the validity of the will while the testator is alive, he or she would be cut out by the testator and disinherited.

Despite these potential benefits, some say the practice is detrimental, leading to increased litigation.

Here are some of the other drawbacks to ante-mortem probate:

Unnecessary Litigation. Litigation is forced on all heirs, when perhaps none of them would have challenged the will under the traditional scheme.

Discomfort. The testator must deal with the litigious heirs, after the litigation is completed.

Do-Over. A pre-death probate proceeding could be a waste of time and resources, since the testator is always free to change his or her will later.

Cost. A pre-death probate proceeding could take a significant chunk of the testator’s retirement savings. Compare this to a conventional will challenge, which is defended by the executor at the expense of the estate since it occurs after the testator is deceased and doesn’t need the money.

Stress. The testator must endure the stress of the pre-death probate proceeding, which entails being deposed, discovery and court appearances.

Privacy. The testator’s privacy could be invaded in any litigation and in discovery.

Reference: Trust Advisor (February 23, 2017) “10 Arguments Against Pre-Death Probate and Will Contests”

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