Category: Probate
Tags: Administration, Wills, Living Trusts

‘Living Probate’ Now Possible in NC

Posted on: September 24th, 2015
Probate is often a time-consuming process that could require several months, or even years, to complete. Probate proceedings could be further lengthened if provisions in a will are contested. Recent amendments to North Carolina’s Uniform Trust Code now provide for ‘living probate’ – a way for individuals to petition a court to declare a will valid while the testator is alive. This could help prevent will contests after the testator dies.

The changes to the North Carolina Uniform Trust Code are part of The Act to Amend the Law Governing Estate Planning and Fiduciaries (Senate Bill 336). Living probate procedures are among several modifications to the Code that affect legislation regarding certain property transferred to trust, trustees, and guardianship in North Carolina. Read more about the recent changes to North Carolina estate planning laws.

To initiate a living probate proceeding, the testator must petition the court to declare the will valid. This process accrues additional expense beyond the costs associated with preparing one’s estate planning documents, particularly if a party contests the will’s validity. However, the testator might feel inclined to incur costs in advance to prevent an even more costly post-mortem administration for surviving family. 

During a living probate proceeding, the court will verify the testator is of sound mind, not pressured under undue influence, and that the will is valid under North Carolina law. All interested parties must be provided with notice of the proceeding, along with full disclosure of the contents of the will. These individuals may have the opportunity to contest the validity of the will, in which case a hearing would be scheduled before the clerk. Each party would then have the opportunity to present evidence regarding the testator’s capacity and the validity of the will.

If a testator’s goal is to ensure that assets pass according to their wishes and to prevent a family member from contesting the will, the testator might find their goals could be achieved through the use of a revocable living trust. A living trust can be structured to provide clear instructions for a successor trustee to follow in distributing assets to beneficiaries. Assets held in trust pass to beneficiaries outside of probate and the terms remain confidential. While a trust might satisfy the goals that an individual would otherwise attempt to achieve through living probate, the expenses might be comparable depending on the complexity of the trust. Like a will, a revocable living trust can be revoked at any time.

According to JDSupra Business Advisor, North Carolina is now one of only five states in the country that provides specific statutes for living probate. Regular reviews of one’s documents is an important step to maintaining one’s estate plan, especially if one moves out-of-state. Individuals moving to North Carolina might wish to address the benefits and disadvantages of living probate with an estate planning attorney to determine if the process is appropriate for their situation. Focusing on a will alone is often not an optimal estate planning method. Learn more about assets that are not distributed as part of provisions in a will.

By Attorney Samantha Reichle

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