Probate is the process whereby your estate is settled after you pass away, and along with that is a determination by the Court that your will is valid (if you have one). With “living probate,” a court will make a determination that your will is valid while you are alive. Thus, “living probate” is a tool for people to use who are worried that someone is going to challenge their will after they die.
Common will challenges include lack of capacity or undue influence. For example, a sick elderly woman who has decided to cut out her estranged son from her will may be worried that when she dies, the son is going to challenge the will on the grounds that she lacked capacity due to her age or health. Unfortunately, she cannot testify at that potential hearing because she has passed away, so the parties will rely on the testimony of those who knew her. With “living probate,” she can testify while she is still living. The court is in the best position to assess her capacity at that time.
Another example: a man has children who live in another state and a female caretaker in North Carolina. He decides to leave the caretaker $20,000 because of her friendship, although he is still providing for his children in his will. After he dies, his children will find out about this gift in the will and if they are upset, they may claim the caretaker asserted influence over their father. To prevent this potential claim, the man could go through “living probate” and show the court that there is not, in fact, any undue influence.
Downsides to “living probate:”
1. There’s the expense of going through this process when it may be unnecessary. The heirs may never challenge the will. The estate still has to be probated upon passing either way.
2. Disinherited heirs will find out that they have been disinherited because they have to be made a party to the proceeding.
3. Along these same lines, the will is public record while you’re still alive instead of only after your death.
4. The North Carolina law does not apply to trusts yet, so theoretically, a trust could still be challenged.
5. Depending on the circumstances, once the will is validated through “living probate,” the court may not allow for revocations or amendments to the will (but this is supposedly rare).
6. Only the testator can start this process – a guardian or agent under a power of attorney cannot seek to have a will validated through “living probate,” even if the testator had capacity at the time signed.
Upsides: The testator will know that their wishes will be carried out. They will know without any doubt that their property is being disposed of according to their wishes. They can rest knowing that their loved ones and the executor of their estate will not be left with a dispute when they pass away or the expense of defending a will challenge.
If you or a loved one has concerns about future will challenges and would like to discuss this option with an attorney, please give Jesson & Rains a call.