Traditionally, wills aren't validated until after their creators have already passed away. However, it is possible to validate a will while a person is still alive. Here's more information about the process and why you may want to go through the trouble of getting a court to recognize the validity of your will before you die.
Avoid Legal Challenges
The top reason why you'd want to have your will validated while you're still alive is to prevent people from challenging it after you're gone. Despite what you may see on TV, will challenges are pretty rare. However, it can be devastating to your estate and heirs when it does occur, because it costs money to litigate the case and a successful challenge can completely upend the plans you had for your assets.
Therefore, if you're concerned someone in your social circle may challenge the legitimacy of your will, getting it validated prior to your demise is a good way to stop a post-mortem lawsuit in its tracks.
Be aware, though, that anything submitted to a probate court becomes accessible to the public. People will be able to see what your assets are and how you intend to distribute them as well as other instructions you put in your will. If you prefer to maintain your privacy, then it's probably best to avoid undergoing will validation.
Getting a Will Validated
To validate a will, you must file a petition with the probate court in your area of residence. After the petition is received by the court, you'll need to go before a judge and provide evidence of the following three things:
- You are/were of sound mind when you wrote your will
- The will was executed properly
- You were not under any undue influence when you created your will
These three issues can be used to invalidate your will after you've passed away, so proving all of them true will be critical to successfully certifying your testament. However, providing evidence for them may not be as simple as you would think.
For instance, it may be necessary to have a psychologist or physician testify as to your state of mind, particularly if you have mental health or medical issues that affect your brain function (e.g. Alzheimer's disease, schizophrenia). Whether the professional writes a letter or testifies in person, he or she will likely charge you for the service, so be prepared to pay.
Additionally, you are required to notify certain parties about your petition (e.g. spouse, adult children, beneficiaries), because they will have the right to also testify in court if they want to. This can be potentially problematic if they have evidence that disputes any of your claims. If anyone can successfully disprove any of the elements required to validate the will, the court will decline to approve your petition.
Unfortunately, the ability to validate a will while you're alive is only available in a few states, such as North Carolina and North Dakota. If you live in any other state, you'll need to employ other methods to make your will litigation proof.
Another drawback to having your will validated while you're alive is you may have to undergo the procedure every time you make changes to the document; otherwise, you may create a situation where people declare the court-approved will as being the only valid one and ignoring any subsequent changes. Therefore, it's best you only go through the process when you're fairly set on how you want your assets distributed.
For more information about the living probate process or assistance with your estate planning, contact an attorney. You can also visit websites like http://www.ivylawgroup.com.