When we think of our Estate Plans, we consider our intentions for the future. The kind of medical treatment we want, what should happen to our home, and who should get the items we've cherished throughout our lives, to name a few. But not many of us may think about what happens after that. After the ink dries and everything is final, when you're no longer there to mediate or settle a disagreement.
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Your Will goes into effect when you die or are otherwise unable to speak for yourself. As part of the process of settling your Estate, it must go through Probate Court. During this process, your Beneficiaries have the chance to contest the validity of your Will. When you Probate your Will before death, your Heirs can contest the document in front of you, putting you in the position to defend and finalize it.
Probate can be a lengthy and often expensive process. It can even eat up an Estate's resources, leaving little for the Beneficiaries by the end. That may be why a handful of states now allow Pre-Death Probate and why the call to expand it is gaining attention. In this guide, we’ll break down:
What is Pre-Death Probate?
Pre-Death Probate, or antemortem probate, is the process of Probating a Will before death instead of after.
Pros of Pre-Death Probate
The concept of Pre-Death Probate can seem attractive to anyone who wants to save their family from the financial and emotional stress of settling their Estate in court. Pre-Death Probate can also validate your wishes in front of your family and dissuade people from contesting them. Here are the pros of Pre-Death Probate:
Convenience
Probating your Will before death files it with the county clerk's office. That means not having to remember where you put it years later or keep it safe for your loved ones to find after you're gone.
The average American spends two and a half days each year looking for lost items. Probating your Will before death saves your loved ones that precious time. And just because you Probated your Will doesn't mean that anything immediately goes into effect. A Will does not take effect until after the Testator, the person who created the Will, has died.
Make Your Wishes Known
When you Probate your Will before death, you're telling your family and loved ones that these are your final wishes; and you're testifying to it in court. They don't have to agree with the decisions you've made. There's a chance someone won't. But instead of airing their grievances with the court after you're gone, drawing the Probate process out, they have the chance to say their piece in front of you.
Following through with a family member's last wishes can be difficult. Not just because of grief, but also if they aren't in agreement with the decisions you made. Probating your Will before death allows you the opportunity to tell your loved ones that these are your last wishes, from end-of-life care to who inherits your home.
Avoid Family Disputes
No one can hold a grudge like a member of the family can. Rather than igniting a family dispute between siblings, cousins, or extended family, Pre-Death Probate provides your Heirs with the certainty of knowing that what is in your Will are your true last wishes.
No one wants to think about the people they love most not getting along after they're gone, and family rifts can last for years. Pre-Death Probate can provide a kind of closure that can be beneficial to those you leave behind.
Probating a Will before death can also discourage family members from contesting the Will for fear of being cut off or disinherited.
Cons of Pre-Death Probate
While it's true that Pre-Death Probate can provide Testators (and Beneficiaries) with peace of mind, some notable drawbacks are still at play. Here are the cons of Pre-Death Probate:
Not Valid Everywhere
While it may seem like a good way to stop family turmoil before it begins, only four states allow you to Probate your Will before death—Ohio, Arkansas, North Dakota, and Alaska.
If you live in one state but own property in another, you may need to Probate your Will with each of those states. The county that you reside in does not have jurisdiction over the property in other locations.
While Pre-Death Probate is not recognized everywhere, states will typically accept Wills from other states if it is valid in the county it originated.
The Terms Can Change at Any Time
While your Will may be finalized and filed with the county clerk, you can still change it at any time before your death. Going through Pre-Death Probate does not lock in your wishes. It isn't in a vault where you can't get to it again. But creating a new Will or updating an existing one will require you to go through Pre-Death Probate again.
Loss of Privacy
Once filed with the court, a Will becomes a matter of public record. This is true whether the Testator goes through Pre-Death Probate while they are alive or if the Executor of the Estate files the Will with the Register of Wills after their death.
Once a Will becomes public, anyone who may have a reason to believe that they are (or should be) named in your Will can show up at the courthouse and request to view your documents in their entirety.
Expert Estate Planning Help
Probating your Will before Death is as personal of a decision as anything else in your Estate Plan. There are sensible reasons why it may make sense for you and your loved ones.
Trust & Will is an online Estate Planning agency that makes it easy for anyone to create or update their Estate Plan no matter where you live. Our easy-to-use system gets you the answers you need about your Estate Plan, from state-specific documents to making the process easier for those you love the most. Get started today!
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