Probate is a judicial procedure through which the validity of a testamentary document is established. Typically, probate occurs after the testator dies. However, some states allow for “living probate,” in which the validity of the testamentary document is established while the testator is still alive. A living probate, therefore, can limit the likelihood that the validity of a testator’s will, codicil, or trust will be successfully challenged after the testator’s death. A testator who believes his or her will, codicil, and/or trust is likely to be challenged—such as where the testator disinherits a child or spouse—may desire to accelerate the estate dispute and determine issues of validity while he or she is alive and able to testify.
In 2015, SL 2015‑205 amended North Carolina’s laws governing estate planning and fiduciaries. These amendments included the addition of Article 2B, titled “Living Probate,” giving a petitioner who is a resident of North Carolina and who has executed a will or codicil the right to file a petition seeking “a judicial declaration that the will or codicil is valid.” The statute provides that such a petition can be filed with the clerk of superior court, and validity of the will or codicil can be established by presenting sufficient evidence at a hearing before the clerk of superior court. At the time SL 2015‑205 went into effect in 2015, North Carolina was one of only five states with statutes specifically regarding living probate, and the statutes did not provide for living probate of trusts.
On June 25, 2021, Governor Roy Cooper signed SL 2021‑53, which amended North Carolina’s general statutes regarding estates and trusts, with the changes going into effect on October 1, 2021. The amendments included the addition of a new article—Article 4C—entitled “Judicial Establishment of Validity of a Revocable Trust.” The statute substantially mirrors Article 2B and provides: “During the settlor’s lifetime, any settlor of a revocable trust who is a resident of North Carolina may commence a judicial proceeding seeking a judicial declaration that the trust is valid” by filing a petition with the Superior Court Division of the General Court of Justice and producing sufficient evidence of the revocable trust’s validity at a hearing. The amendment further provides that a petition for living probate of a revocable trust may be joined as an additional claim with a petition for living probate of the settlor’s will or codicil as provided in Article 2B. If the petitions are joined, “the joined action shall be heard in the Superior Court Division of the General Court of Justice.” These amendments give testators further control over the disposition of their assets at death, particularly in situations where a testator’s desired disposition is controversial and likely to be challenged.
The attorneys at Lindley Law specialize in trusts and estates disputes. If you need assistance regarding a dispute over a trust or estate, please give us a call at 704-457-1010 to see how we might be able to help you. For more information regarding our attorneys and practice areas, please visit us at www.lindleylawoffice.com.