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Living Probate – How to Avoid Will Challenges After You Die

Living Probate – How to Avoid Will Challenges After You Die

Are you concerned that someone will challenge your Will after your death and that your wishes will be negotiated away or overturned by a court? Filing a challenge to an individual’s Will after his or her death is called a “caveat.”

Caveat filing arguments include: lack of capacity of the person signing the document (the “Testator” or “Testatrix”); undue influence of the Testator (e.g., didn’t sign of his own free will); fraud upon the Testator or forgery; mistake of the Testator; improper execution; or revocation of the Testator’s Will.  Beyond the damage of your Will being overturned by a court, your estate’s caveat defense can cost tens of thousands of dollars.  Sometimes a party who receives nothing or little from a Testator challenges a Will because he or she has nothing or very little to lose.  For a large estate, some attorneys will take a caveat on a contingent fee basis (e.g., attorney gets 33% or 40% of the client award upon winning the case) because it’s likely that the parties will settle, and the attorney will be paid.

Historically, the only defense against a caveat was to oppose the challenge. “Living probate” is a new way a Testator can ensure a Will is honored after death.  A North Carolina resident who has executed a Will can file a petition before the Clerk of Superior Court (“Clerk”) in his or her county of residence.  The petition can ask the court to declare that the Will is valid for probate and would be accepted by the Clerk if the Testator died.  If, at or before the hearing before the Clerk, a caveat is filed, then the matter is immediately transferred to Superior Court for the court to hear the challenge.

It’s binding if the Clerk enters an order that the Will is valid, and all parties to the proceeding are barred from caveats after the Testator dies and after the document is accepted for probate.  The Court can even order that the Will cannot be revoked and that any subsequent Will isn’t valid until it’s accepted to be valid by the Clerk in a living probate procedure.

If you believe that your Will may be challenged after your death, or if you disinherit someone (e.g., a child) as a beneficiary of your Will, contact Weaver, Bennett & Bland, P.A.’s estate planning attorneys to discuss your situation and make living probate a part of your estate plan.

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