Ante-Mortem Probate: A Viable Alternative
Leopold, Aloysius A.
Beyer, Gerry W.
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Most jurisdictions within the United States currently utilize the post-mortem model of probate. Under this theory, an individual of legal age and of sufficient mental health plans for the distribution of his estate at death, apportioning shares to individuals or organizations that he feels are most deserving. These intentions are formalized in a will and stored in a safe and often secret place until the death of its writer. At that time, it will be read again to proclaim donative intent and assure that the estate is distributed in accordance with the testator's desires. However, will contests often arise that destroy the testator's wishes. An alternative for post-mortem probate is to validate the testator's will during the testator's lifetime, known as ante-mortem or living probate. This article discusses the issues with post-mortem probate and the conventional techniques that fail to resolve these problems. The authors then discuss three modern ante-mortem probate models, the three states with ante-mortem statutes, and the unsuccessful efforts to approve a uniform act. The authors also urge that ante-mortem probate be given serious consideration.