Living probate is an option available in North Carolina and a handful of other states. It allows the testator to have a court determine the validity of their will during their lifetime, rather than after their death.
The benefits of living probate are that the testator can feel more certain that their wishes will be carried out and if a contest occurs, the testator has a chance to refute it.
Traditional Probate vs. Living Probate
Traditional probate occurs after a testator is deceased. One of their heirs could bring a will contest, also known as a will caveat, which challenges the validity of the will. They could claim that the testator made the will under duress, or that they lacked sufficient mental capacity when creating the will.
The testator would have no opportunity to defend their will’s validity because they had already passed. Living probate is available as a way around these will caveat issues. If someone wants to contest the will’s validity, the testator is there to defend their actions.
Why Living Probate?
Living probate may be an attractive option in the following scenarios:
- You are “cutting someone out” of your will, and they may respond by contesting it.
- Your will splits assets unevenly between your heirs.
- You are leaving a substantial bequest to someone who is not your natural heir.
- You are experiencing health or cognitive issues, which could leave your will open to an attack based on lack of capacity.
However, living probate does have its drawbacks. Your will becomes a matter of public record during living probate, but you can request that the documents be sealed until your death.
You may also lose some flexibility to modify your will. If you use living probate to validate your will and then make changes, you may want the court to make another determination that the will is valid.
Finally, living probate does not completely bar will caveats after your death. A caveator would have to show that you were under significant financial or physical duress or coercion during the living probate proceedings and that you were prevented from revealing the coercion.
If you are concerned about a potential will caveat, ask your estate planning attorney about the costs and benefits of living probate.
At King Law Office, we understand that your estate plan should be designed to fit your objectives and family situation. Our goal is to help guide you through this process and listen to your concerns. Come visit us at one of our multiple office locations throughout North and South Carolina.