LeClairRyan Attorney Warns About Pre-Death Probate
WILLIAMSBURG, Va., Feb. 23, 2017 /PRNewswire/ — A movement to allow wills to be either validated or challenged while the document’s creator is still living is gaining steam, according to attorney Will Sleeth. But it’s a bad idea, he cautions.
«Pre-death probate, also known as antemortem probate, is only permitted in a handful of states –including Ohio, Arkansas, North Dakota, and Alaska – because the traditional rule has been that a will doesn’t ‘speak,’ or take effect, until the death of the testator,» notes Sleeth, a partner in national law firm LeClairRyan’s Williamsburg office and leader of the firm’s Estate and Trust Litigation team. «But more states, like New Jersey, are considering adopting this practice.»
Sleeth outlined his concerns about antemortem probate in a recent blogpost, 10 Arguments Against Pre-Death (Antemortem) Probate and Will Contests. His post appears on the firm’s Estate Conflicts blog, which focuses on disputes involving wills, trusts, guardianships, and celebrity estates.
In general, antemortem probate permits a testator – or creator of the will – to seek a ruling from the court that their will is legally valid while he or she is still alive. «Proponents of antemortem probate point to several benefits to the practice,» Sleeth writes. «It provides for certainty and avoids family disputes after death, and it ensures that the testator can testify in favor of the will – a practice that he obviously could not do after he dies.»
Antemortem probate also discourages challenges to a will, since a person who opposes the validity of the will while the testator is alive «would almost certainly be cut off by the testator and may be fully disinherited in a later will, if he was not already,» Sleeth notes.
Despite these claimed benefits, he contends that the practice overall is detrimental. «I believe that the result is an increase in litigation, which benefits estate litigators, but does not benefit society as a whole,» Sleeth explains.
A survey of Ohio practitioners cited in a 2016 Brooklyn Law Review article appears to back that opinion, since respondents generally reported that the antemortem probate option «was complicated, expensive, and created too much unwanted conflict.»
One problem is that antemortem probate can create litigation even when «there is no guarantee that disgruntled heirs would have actually contested the will» when the testator passed away, Sleeth notes. «In other words, litigation is forced on all of the heirs, when it’s possible that none of them would ever have litigated over the will under the traditional scheme.»
It can also create unnecessary tension, since the testator may have to interact with hostile heirs even after the litigation is over. In contrast, under the traditional process, «the deceased testator at least does not have to witness his family members fighting over the will,» Sleeth observes. Antemortem probate can also make it «vastly more difficult to settle a dispute,» since a traditional will contest will often settle for an exchange of money, while the issue in an antemortem context «is whether the will is valid or not,» he adds.
An antemortem probate proceeding could also eat into a testator’s retirement savings. In contrast, a conventional will challenge is defended by the executor at the expense of the estate.
At a time when court calendars are increasingly full, a higher volume of pre-death probates may further burden the justice system by «expanding the concept of a declaratory judgment suit beyond what it traditionally encompasses,» Sleeth warns. «In the vast majority of states, for a party to bring a declaratory judgment action, there has to be an ‘actual controversy.’ Under antemortem probate, there is no actual controversy, yet the testator still has to file a judicial proceeding.»
The full column is available at https://estateconflicts.com/10-arguments-against-pre-death-antemortem-probate-and-will-contests/#more-963.
As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices in California, Connecticut, Delaware, Florida, Georgia, Illinois, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, Pennsylvania, Rhode Island, Texas, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit www.leclairryan.com.
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