Living probate allows a person to file an action petitioning the court to have a Will declared valid. What makes this law new and different is that the Will is proved before the testator (the person whose will it is) dies. The purpose, of course, is to prevent a contest of the validity of a Will after the testator’s death. A judicial declaration (court order) is sought that declares that a Will is valid prior to the death of the testator. If the court declares the Will valid, this order is binding on all parties and bars actions after death to contest the Will. There are, of course, some exceptions such as if someone proves after death that the testator was under undue influence during the Living Probate proceedings.
North Carolina is the fifth state to enact a Living Probate statute. While some may see this as making great strides for testamentary freedom, there remain some disadvantages. When a person petitions the court, notice muse be given to all interested persons. This would include all persons who may claim an interest in the estate to preclude a later challenge by a disinherited beneficiary. Children, grandchildren, siblings, parents, are examples of those who must be given notice. Therefore, one has to tell his or her family exactly who is being disinherited. Further, all the terms of the Will (who gets what, who is named as executor) must be disclosed. This creates significant exposure and certainly can affect familial relationships during life. Consequently, a significant amount of privacy is lost using Living Probate.
Once notice is given to all the parties, if an interested person contests the validity of the Will, the matter is referred to the Superior Court and moves forward as a caveat (will contest) proceeding. The petitioner must then produce evidence that the Will was executed in accordance with applicable law, and that the testator had testamentary capacity and was not under undue influence or coercion when the Will was executed. The contesting party would submit evidence to disprove the same. As one might imagine, these proceedings can become protracted and expensive.
Clearly the advantage to Living Probate is that it gives a person the ability to prove their own Will while still living and allows that testator the opportunity to testify to his or her own intent, competency, and whether or not he or she has been subject to any undue influence. These advantages must be weighed against the loss of privacy, exposure, effect on family relationships and potential cost, during life, of proving ones competency to execute a Will.
