Living Probate: Validating Your Will While You’re Still Alive

If you're worried about a will contest, here's one way to head it off.

By , J.D.

Worried about challenges to your will after your death? Depending on where you live, you may be able to ask a court to rule, in a "living probate" proceeding, that your will is valid now, while you're still around and can show that you're of sound mind and know what you're doing.

Just a few states—Alaska, Arkansas, North Dakota, and Ohio—currently offer a living probate proceeding, where you can prove your will's validity while you are still alive. The process is also called "ante-mortem" probate (that's "before death" in Latin). There's a similar process that lets a court rule on the validity of a trust.

Why Take Your Will to Court Before You Die?

Just about the only reason to go to the trouble and expense of a living probate proceeding is a serious concern over a potential challenge to your will after your death. Will contests are rare, but if one is successful it could overturn your estate plan. And even an unsuccessful challenge will cost the estate time and money, not to mention the family strife that's involved.

Example 1: Glen doesn't have any children and wants to leave everything to his neighbor, who's generously helped him out over the years. But he's afraid that his nieces and nephews—who would inherit from him if he didn't leave a will, or his will were declared invalid—might be angry. He thinks they might even be angry enough to go to probate court and argue that Glen were unduly influenced by the neighbor and wasn't really asserting his own wishes in his will.

Example 2: Louisa is getting on in years and is in poor health. The will she signed long ago leaves everything to her son, Michael, but after watching him handle money, she thinks he would probably squander any inheritance he received. So she decides to write a new will, leaving much of her property to her second husband and stepdaughter. Because Michael doesn't get along with her husband, she's afraid her son may contest her will and claim that she wasn't of sound mind when she made it.

The Living Probate Proceeding

If you want a court to validate your will during your lifetime, you must file a request (petition) with the local probate court. The court will schedule a hearing on the issue.

You'll need to notify certain people about the hearing so they'll have a chance to show up and be heard if they wish. The specifics vary from state to state, but you'll probably need to send a notice to your spouse, children, and any other people who would inherit from you if you died without a will. (People entitled to inherit from you under state law, if you don't leave a will, are called your legal heirs.) You may also need to publish a notice in a local newspaper.

At the hearing, the court will hear evidence on the three main factors that affect validity of a will:

The will's execution. You'll need to show that the will was executed properly—that is, that you signed it with all the formalities required by your state's law. Two witnesses must have watched you declare that the document was your will and you signed it of your own free will, watched you sign, and signed the will themselves.

Your mental state. You must also show that you were of sound mind when you signed the will and that you understood what you were doing.

Undue influence. Finally, the court will evaluate whether or not you were being unduly influenced by someone who was taking advantage of you and trying to substitute his or her wishes for your own.

If the court finds that the will is valid, it will issue a ruling to that effect. The will stays on file with the probate court. Its contents may or may not be public during your life, depending on the state's procedure. In North Dakota, for example, the will is available only to the will maker (the testator). After death, a will that's filed with a probate court is a matter of public record.

If You Change Your Mind Later

You are free to revoke a will that has been validated by the probate court, without any court involvement. But it's a good idea to go to court and remove the validated will that's on file there, to remove the possibility of confusion later about which will you intended to take effect at your death.

Other Ways to Head Off Will Contests

Most states don't let you go to court to prove the validity of your will before your death. So if you're worried about a will contest, what can you do? Here are some ways to reduce the chances of a court fight after your death:

Don't surprise people. Make sure everyone knows and understands how you're going to leave your assets. If they hear it from you, they'll be more likely to respect your wishes than if they're surprised and hurt later.

Be specific about who gets items of sentimental value. Many fights erupt over items that don't have much monetary value but do have emotional significance.

Observe the formalities. Be sure to follow your state's rules to the t when you sign your will. Consider videotaping the signing ceremony if you think your mental state might be challenged.

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