Trusts and Estates
Ca. Trs. & Estates Quarterly 2020, Volume 26, Issue 4
Content
- Chairs of Section Subcommittees
- Editorial Board
- From the Chair
- From the Editor-in-chief
- Grieve V. Commissioner: Death of the Minority Premium Model (Taxpayers Dodge a Bullet)
- Inside this Issue:
- It’S a Gift If You Do. It’S a Gift If You Don’T. What Lurks In the Shadows When An Interested Fiduciary Acts
- Litigation Alert
- Tax Alert
- The California Throwback Tax Applicable To Distributions of Previously Untaxed Accumulated Trust Income To California Resident Beneficiaries
- Undue Influence: Pressure Brought To Bear Directly On the Burden of Proof
- Tips of the Trade: North To Alaska For An Ante-mortem Probate
TIPS OF THE TRADE: NORTH TO ALASKA FOR AN ANTE-MORTEM PROBATE
By Anne M. Rudolph, Esq. and Ralph E. Hughes, Esq.*
INTRODUCTION—THE 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 probate—the Holy Grail—is 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.