Antemortem Probate is a Bad Idea: Why Antemortem Probate Will Not Work and Should Not Work

Abstract

“The broadest definition ever given to the judicial power confines it to controversies between conflicting parties in interest, and such can never be the condition of a living man and his possible heirs.” Although the Michigan Supreme Court was correct in many ways, their use of the word “never” was an overstatement.2 Despite the case and controversy doctrine and the many other constitutional as well as practical issues that arise from antemortem probate, five states presently allow courts to hear probate disputes before the death of the testator. Among the five is North Carolina, which signed its antemortem probate statute into law on August 11, 2015.

North Carolina’s recent enactment falls amid a growing movement advocating antemortem probate statutes in order to curb the ills of the modern probate system. These calls arise from a growing criticism of the traditional probate system caused by a shift in American family make-up. Central criticisms of the traditional probate system are that the testator’s intent is not fully realized, technical errors may invalidate an otherwise valid will, and that funds are inefficiently squandered in spurious will contests. Proponents of ante-mortem probate opine that their system would rid estate planning of these problems, but they fail to take into account the constitutional, practical, and policy objections to their cause. The proponents - most importantly - place too much emphasis on the interests of the person who is dying and not enough emphasis on the people surrounding the testator when she passes away.

Antemortem probate is a devise by which normal people with rational sensibilities may be prejudiced. Under the contest model used by Ohio, Arkansas, Alaska, North Dakota, and now North Carolina potential beneficiaries under the will and intestate succession must be notified, but the circumstances under which they are notified can leave normal families in the cold. But the contest model is not even the most favorable model for undue influencers. The other models streamline the probate process even more,11 multiplying the potential that the rightful heirs will be left with nothing.

This article is an attempt to neutralize the enthusiasm for antemortem probate as a means to solve the problems endemic in traditional probate law. While proponents claim that antemortem probate is a tool to carry out the testator’s true intent, this article posits that the statutes are more fairly characterized as a tools that complicate the system and mask the testator’s true intent. All proposed versions of ante-mortem probate have practical, constitutional, and policy issues that cannot be overcome.

Keywords: Probate, Wills & Estates, Antemortem Probate, Living Probate, Wills, Estates, Will Contests