Are There Benefits to "Pre-Death" Probate?

In general, probate and will contests before the testator dies are not a great idea.

Have you created a will?

Are any of your heirs wanting to bring the will to probate while you are alive?

Should they?

Well, if the loved one lives anywhere outside of Ohio, North Dakota, Alaska or Arkansas, this is not a viable option.

Why?

These four states are the only ones to allow for Pre-Death Probate—also known as "Ante-mortem" Probate.

According to a recent article in Trust Advisor titled “10 Arguments Against Pre-Death Probate and Will Contests,” few states recognize this legal proceeding.

Why?

Because wills traditionally do not take effect until after the death of the will-maker.

How does it work in the states where Ante-mortem Probate is allowed?

In these states, a testator may ask the court to validate his or her will while still alive.

Who is included in the lawsuit?

Every heir named in the will.

Why?

This preemptively keeps these individuals from challenging the will postmortem because the verdict already has been made.

Are there benefits?

Yes and here are three:

• It removes opportunities for will contests after the passing of the will-maker.
• It gives the will-maker (i.e., the "testator," if male, and the "testatrix," if female) the opportunity to defend his or her wishes in court.
• It allows for challengers to be cut out while the testator is alive.

Are there disadvantages?

Yes, and here are five:

• The estate may not have been subject to contest anyway after the testator died, making the process unnecessary.
• Relationships with heirs could be awkward after litigation.
• If you change your will, the proceeding was pointless.
• If the will-maker waits, he or she will not experience the stress of the court proceedings or expend unnecessary estate funds.
• Things you would rather be private could become public in the proceedings.

So, what should you do?

Consider for yourself whether the pros outweigh the cons.

Work with an experienced estate planning attorney to determine whether an Ante-mortem Probate would be a wise decisions.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

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