By E. Drew Nelson, Attorney
You have a last will and testament in place, but do you worry that one of your relatives or heirs might challenge your will after your death? Recent changes in the estate laws of North Carolina have provided an option never before available to North Carolinians – the chance to have a Living Probate.
If you are a resident of North Carolina, you can now seek a judicial determination that your last will and testament is declared valid during your lifetime. Until recently, you would execute a will and after your death the will would be probated. Anyone challenging your will would come forward at that time and file the challenge with the courts. The option now exists to address any potential challenges while you are still alive. If the will is declared valid by the court during your lifetime, this would serve to bar future challenges or caveats after your death. This tool can provide a family peace of mind that their well thought out estate planning will not be challenged by a disgruntled heir or unhappy family member after their death.
In order to petition the court for a determination as to the validity of your will, an application must be filed showing the court that you possessed testamentary capacity (were of “sound mind”) at the time you executed the will. You must also show the court that you were not subject to any undue influence. All interested parties will have a chance to come forward and bring any disputes as to the validity of the will to the attention of the court.
The court may also declare that any future changes to the will must go through the same court approved Living Probate. This allows families who worry about having an individual taken advantage of in the later years of their life to have a mechanism in place to avoid such potential for exploitation.
Many people may worry about the privacy of their last wishes. The court may order the records sealed after the court reaches a decision. This ensures the public will not have knowledge of the contents of your will during your lifetime.
The attorneys at Brinkley Walser Stoner, PLLC are knowledgeable in all aspects of estate planning and probate. Should you like to know more about how Living Probate or other estate planning techniques may benefit you and your family, please feel free to contact one of our attorneys.
Does the law require all wills be probated? I have but one heir to whom all of my estate will be given, so I do not have any of the concerns listed in your article on Living Probate.
The law requires an original will to at least be turned over to the clerk of superior court for filing. If there are assets titled in the deceased’s name only with no beneficiary named, then typically probate is necessary to pass clear title of those assets to the heirs under the will.