Legally referred to as “Ante-mortem Probate,” this practice of probating your own will before death permitted only in four states—Ohio, Arkansas, North Dakota and Alaska. As explained by Trust Advisor in “10 Arguments Against Pre-Death Probate and Will Contests,” the process allows challengers to contest the validity of the will. It runs contrary to the well-established concept that a will does not take effect until the person—the testator—has actually 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.
A few states have recently 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 that the practice is detrimental, leading to increased litigation. Here are some of the other drawbacks to antemortem 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.
If you live in a state that permits ante-mortem probate, carefully consider the impact that doing this may have on your family. Your private life may become very public, your family will likely not appreciate being dragged into litigation and if you change your will at any point in time, the whole process will have been for nothing. Speak with an estate planning attorney, to see if there are other ways to achieve your estate planning goals.
Reference: Trust Advisor (February 23, 2017) “10 Arguments Against Pre-Death Probate and Will Contests”