Living probate in North Carolina allows a person to seek a judicial declaration that his or her will is valid while he or she is alive. Living probate is only authorized in a handful of states, and became available in North Carolina in August 2015.
What Is Living Probate In North Carolina?
As stated above, living probate allows a person to have his or her will declared valid before they die. If a person’s will is declared valid through a living probate proceeding, any party to the proceeding is prohibited from later challenging that will after the testator’s death.
The North Carolina living probate process could be used by a testator who anticipates the occurrence of a will contest after their death, and who desires to make sure that their intent set forth in their will controls.
How Does a Living Probate Proceeding Begin In North Carolina?
The testator (the person who made the will) initiates the living probate proceeding by filing a verified petition with the court. The petitioner must be the person who executed the will, and must be a resident of North Carolina. The petition must contain, pursuant to § 28-A-2B-3:
- A statement that the petitioner is a resident of North Carolina and specifying the county of the petitioner’s residence.
- Allegations that the will was prepared and executed in accordance with North Carolina law and a statement that the will was executed with testamentary intent.
- A statement that the petitioner had testamentary capacity at the time the will was executed.
- A statement that the petitioner was free from undue influence and duress and executed the will in the exercise of the petitioner’s free will.
- A statement identifying the petitioner, and all persons believed by the petitioner to have an interest in the proceeding, including, for any interested parties who are minors, information regarding the minor’s appropriate representative.
The petitioner must also file a copy of the will or codicil with the petition and tender the original will or codicil at the hearing.
Who Are Interested Persons In a Living Probate Proceeding?
Interested persons in a living probate proceeding would generally include the persons named in the will as beneficiaries, the intestate heirs, next of kin, and any named beneficiaries in prior wills that could be affected by the will — basically, anyone who would have standing to challenge the will in a post-death will contest proceeding should be given notice.
Those persons who are parties to the living probate proceeding are barred from later challenging the will after the testator dies.
Is the Living Probate Proceeding a Contested Proceeding Under North Carolina Law?
Yes, the living probate proceeding is treated as a contested probate proceeding under North Carolina General Statute §28A-2-6.
An interested person can object to the validity of the will on any of the standard grounds, including undue influence, lack of capacity, and failure to comply with testamentary formalities.
If no objection is made, the petitioner still must establish that the will complies with the requirements for a valid will under North Carolina law, and would be admitted to probate if the petitioner was deceased.
If the will is determined valid, then the clerk enters an order declaring the will valid, and attaches a certificate of validity to the will.
What Are Some Of the Pros Of a North Carolina Living Probate?
If a will is declared valid in a North Carolina living probate proceeding, the testator has accomplished a couple of things. First, and obviously, the will is a valid document, declared so by the court.
Second, the judgment of validity is binding on all parties to the proceeding, meaning none of the parties can challenge the will after the petitioner’s death (absent duress or fraud). Thus, living probate can preempt litigation after death. See G.S. § 28A-2B-4.
A testator’s estate is not actually administered during the living probate proceeding. The typical occurrences of probate, such as the qualification of the executor and distribution of the estate, still happen after the testator’s death.
What Are Some Of the Cons Of a North Carolina Living Probate?
One glaring con of the North Carolina living probate proceeding is that the testator might be inviting a pre-death will contest that will turn the testator’s family against each other, and possibly the testator, during the testator’s lifetime.
The testator could also be opening him or herself up to personal attacks if an interested person challenges the validity of the will, perhaps on lack of capacity grounds.
Also, because the will is part of the public record, the testator loses some privacy by petitioning for living probate in North Carolina.
A North Carolina probate lawyer will be able to discuss the pros and cons of living probate with you if you are considering this pre-death proceeding.
