“[I]n the absence of fraud, duress, mistake in the identity of the instrument executed, or lack of mental capacity, public policy requires that a testator’s will remain inviolate.” In Re Cobb’s Will, 271 NC 307 (1967).
Wills, historically, have been treated as sacrosanct—the pure expression of its maker’s (the testator’s) intent. Unfortunately, however, the testator’s intent is not always held up after his or her death. The testator was unable to probate his will until death, and then, when he could no longer speak, sometimes unhappy family members, feeling short-changed, would launch a challenge to the will. The most frequent claims in these cases are either that the testator lacked the mental capacity to make the will, or that he was unduly influenced by someone close to him. In most cases, claimants typically make both claims in their challenge to the will—called a caveat proceeding.
These challenges arise after the testator has died, and his executor is attempting to probate the will and disburse the assets in the manner provided by the will.
Caveat proceedings have constituted a significant problem for estates. The testator is no longer around to speak for himself. Even when a caveat is unsuccessful, it can cause the estate large fees. Quite often in these cases, those seeking to uphold the will (the propounders) may settle and give the caveators something if for no other reason than to save legal fees.
The North Carolina legislature has enacted a new legal process that could safeguard the intent of testators. The procedure is called “living probate.” Unlike traditional probate, where the will is not properly registered until after the testator has died, living probate allows a testator to obtain a judicial determination prior to death that his will is valid.
Under the traditional probate procedure, the testator executes a will and hopes that it is upheld after his death. With the living probate procedure, a testator has the opportunity to speak for himself after making the will and prior to death.
Unfortunately, will challengers can make allegations that have no merit because they know the deceased cannot refute their allegations. Often, a disinherited heir will claim that their deceased relative didn’t know what they were doing or else were forced into executing their will a certain way. Living probate allows you to affirm to the court that you knew what you were doing and that the will reflects your true intentions. It takes the guesswork and hearsay out of probate.
Who might living probate benefit? Here are some examples:
–Someone who wants to make an unequal division of her property in her will between family members;
–Someone who desires to leave one or more “heirs” out of his will;
–Someone with medical or health issues that might cause someone later to question her clarity of mind at the time she made her will;
–Someone with adult children, who wants to leave the bulk of his estate to a spouse that is not the children’s parent.
The living probate process is not perfect, however. Living probate may not avoid conflict altogether. Instead, it shifts the timing of any inevitable conflict to while the testator is still alive, and allows the testator’s voice to be part of the conversation.
The living probate process, unfortunately, can’t be done secretly. The process requires a court hearing, and the testator would need to name as parties all of those parties who may have an interest in the will. This means that some of the very people whom the testator would not want know about the will most in fact be notified of the hearing. Also, the testator would in the hearing have to make the contents of his will public, something which many people do not want to do during their lifetime.
Living probate is not for everyone, as the above description demonstrates. However, for some, living probate can give them peace of mind, prior to dying. It can save the estate from the costs of future litigation. Most importantly, if done correct, it ensures the testator that his intent will be accomplished after his death. .
To learn more about living probate and for all of your other estate planning needs, please call The Deaton Law Firm today to arrange an appointment. Your executor will thank you.
