Ante-Mortem Probate: A Viable Alternative

Abstract

Most jurisdictions within the United States currently utilize the post-mortem model of probate, in which a person of legal age and sufficient mental health plans for the distribution of his estate at death, allocating certain shares to those individuals deemed most deserving. This intent is formalized in a will, dormant until the death of its writer, upon which it will be made public to proclaim donative intent and assure that the estate is distributed in accordance with the testator's desires. However, this model is not full-proof and can often create will contests resulting in the exact opposite of the testator's wishes.

A substitute for post-mortem probate is to validate the testator's will during the testator's lifetime, known as ante-mortem or living probate. This article addresses the issues that can arise with post-mortem probate and the unsuccessful techniques that fail to resolve these problems. As an alternative, the authors look at three modern ante-mortem probate models, the three states with ante-mortem statutes, and the unsuccessful efforts to develop and approve a uniform act. The authors also urge the benefits of ante-mortem probate and argue why it should have a place among existing probate models.

Keywords: probate, wills, ante-mortem

JEL Classification: K11, K19, K39