TIPS OF THE TRADE: NORTH TO ALASKA FOR AN ANTE-MORTEM PROBATE
By Anne M. Rudolph, Esq. and Ralph E. Hughes, Esq.*
INTRODUCTIONâTHE ANTE-MORTEM PROBATE
Nine states have enacted legislation expressly authorizing ante-mortem proceedings to validate a will, a trust, or both.1 The goal of an ante-mortem probateâthe Holy Grailâis to obtain an order precluding post-death contests of the validated document, granting it "total invincibility."2 Although validation proceedings do not result in any disposition of a decedent’s property at the time of the validation, they have become known as "ante-mortem probate" proceedings."3
An ante-mortem probate to validate a will, a trust, or both, differs from a traditional post-mortem proceeding principally because the person creating the instrument is alive and available to testify about their wishes and demonstrate their capacity. The presence of this key witness should, the argument goes, eliminate the all-too-familiar situation in which heirs and beneficiaries take advantage of death to make unfounded claims as to the validity of an instrument, usually based on incapacity and undue influence.