Blanco Tackabery - Winston-Salem Attorneys
Attorneys and Counsellors at Law
Winston-Salem 336-293-9000 | Charlotte Area 704-696-2160

By: Caroline C. Munroe, Ryan A. Layton, and Amy L. Chapman

If you thought probate was a legal process that occurred after death to prove a Last Will and Testament, you are not alone. Typically, a Last Will and Testament (a “Will”) is signed by the Testator (the person making the Will and disposing of property his or her property at death) in accordance with state law requirements and formalities, but the Will remains revocable by the Testator so it can be revoked or amended by a Codicil or new Will. In North Carolina, a Will may be filed with the clerk in the Estates Division in the county where the Testator is domiciled, but more often than not, the Will is placed in a fire-proof location for safekeeping and not offered for probate until after the Testator’s death.

Effective August 11, 2015, North Carolina enacted a Living Probate proceeding, which is only available in a handful of states. Despite being over 3 years old, it remains relatively unused and unfamiliar to attorneys, clerks and clients. A Living Probate is a legal proceeding initiated by the Testator to validate his or her Will. The Living Probate does not set the terms of the Will in motion like it would in an historic after-death probate. Thus, it will not result in the qualification of the named Executor or in the distribution of any of the Testator’s assets and it will not eliminate the need for probate after the Testator’s death to qualify the Executor.

The Living Probate process may benefit Testators with blended families who need to address North Carolina’s elective share laws or to preempt challenges from disinherited family members.

PROS CONS
AVOIDS SURPRISES. Opportunity for Testator, heirs and named beneficiaries to address Testator’s wishes as set out in the Will. POTENTIAL ATTACKS ON THE TESTATOR. Transparency means full disclosure—“We are leaving everything to the Dog, kids!”—and invites questions about mental capacity.
STAY ORGANIZED. Eliminates possibility of lost or hidden Will at time of Testator’s death. PRIVACY LOST IF ACTION NOT TAKEN. A party must make a motion to seal the Living Probate record in order to make the file and the Testator’s Will private.
PREEMPTS LITIGATION AND CAVEATS. Bars interested parties from filing caveats to the validated Will while it preserves a beneficiary or heir’s right to challenge a revocation, new Will or Codicil unless provided with notice.

*Exception to Bar from Caveat to a validated Will if clear and convincing evidence shows the superior court that before and during the Living Probate hearing, the testator was subject to financial or physical coercion and it was so significant that the Testator would not have reasonable disclosed it at the hearing.

ADVERSARIAL LEGAL PROCEEDING.

There must be an evidentiary hearing even if all of the parties are in agreement as to the Will’s validity

Interested parties can appeal the clerk’s decision to the superior court within 10 days of the order to determine:

(1) whether the findings of fact are supported by the evidence; (2) whether the conclusions of law are supported by the findings of fact; and (3) whether the order or judgment is consistent with the conclusions and applicable laws.

After a Will is validated in a Living Probate proceeding, a party from such proceeding is NOT BARRED from challenging a subsequent revocation, Will or Codicil unless (1) the new instrument is declared valid by a court proceeding under NCGS Section 28A-2B and (2) the interested party is made a party to that proceeding.

COSTS. Increased expense to the Testator as there will still be standard fees and costs borne by the Testator’s Estate after death for probate of the “validated Will by Living Probate” to qualify the Executor.
NO STANDARD FORMS— Clerks are unfamiliar with the process so it is a learning process and there is currently no mechanism for transferring the Living Probate file, which contains the original Will, to a new state of residence. Thus, if a Testator completed the Living Probate process in NC, but died as a resident of another state, the Will would need to be offered for original probate here in NC and then ancillary probate in the domicile jurisdiction.

About the Authors:

 

 

 

 

 

 

Caroline and Ryan are wills, trusts and estate planning attorneys at Blanco Tackabery.

Amy Champman is an estate administration paralegal for the Trusts and Estates group at Blanco Tackabery.

 

Attorneys and Counsellors at Law
Winston-Salem 336-293-9000 | Charlotte Area 704-696-2160