Pre-Mortem Probate

Abstract:     
The post-mortem probate model overwhelmingly used in the United States is significantly deficient because the one person who would know the testator's desires best is the testator himself, who is deceased and unable to testify as to his capacity, intent, and freedom from undue influence. This situation presents the problem of illegitimate will contests that eat away at the corpus of the estate no longer protected by the evidentiary power that lies buried with the testator. The pre-mortem or "living" probate offers a solution by conducting proceedings for validating the will while the testator is still alive. This article discusses the development and models of ante-mortem probate, their benefits, and their deficiencies. The author concludes by advising jurisdictions lacking pre-mortem probate to consider adopting procedures that convey the benefits of this technique to their citizens.

*Winner of Probate and Property 1993 Excellence in Writing Award-Best Cutting Edge Article (probate and trust).

Keywords: pre-mortem probate, ante-mortem probate, living probate

JEL Classifications: K11, K19, K39

Accepted Paper Series