North Carolina joins four other states in providing a path to ensure decedents’ assets are distributed according to their wishes upon death.[1] The North Carolina General Assembly recently enacted legislation amending statutes regarding estate administration by adding a procedure for “living probate.” This action is usually commenced by a testator – the author of a will – prior to his or her death where he or she anticipates a challenge to the will’s validity. The court can now declare a will is valid while the testator is alive, thereby preventing potentially more expensive litigation after the testator’s death, when he or she is unable to testify.
There are several ways to challenge a will’s validity. Challengers can assert the testator had diminished mental capacity, was under undue influence, or there were defects in execution, among other things. Until now, these arguments took the form of caveat proceedings and were litigated after the testator died. With the new living probate option, once the testator files a petition, all interested persons (i.e. potential beneficiaries) are notified. This includes anyone named in the will as well as those individuals that might inherit in the absence of a will, such as the spouse and/or children. These interested parties are then given the opportunity to present evidence regarding the mental state of the testator, the validity of the execution of the will, and/or whether the testator was subject to any coercion or undue influence. If the court determines the will is valid, it will issue an order to that effect.
Many testators prefer to keep the contents of their will secret in hopes of avoiding conflict prior to death. However, for individuals worried their family members may contest their will after their death, and eager to find peace of mind regarding their assets, pursuing this option may be appropriate. Pointedly, it can provide assurance that their wishes will be honored – once the court concludes the will is valid, it cannot be challenged after the testator’s death unless it is later replaced or modified.
Living probate can also be useful for someone who wishes to leave their assets to a person or entity other than those who would inherit absent such a directive. For example, an animal lover with an estranged spouse and children might wish to execute a will leaving some or all of his assets to the Humane Society. As such, he may wish to pursue living probate to obtain a court order that his will was validly executed, he was of sound mind at the time of execution, and there was no undue influence present. This way, he will be assured that his assets will be distributed to the intended recipient.
If you or someone you know is considering living probate as an option, it is advisable to seek the advice of an attorney. If you would like more information about living probate, please visit us at https://lindleylawoffice.com/contact_us.php.
[1] Alaska, Arkansas, North Dakota, and Ohio have similar living probate statutes.
