Does New York Have Pre-Mortem Probate?

The surviving relatives of a deceased person often find the thought comforting that their late family member can still see them and offer encouragement. For the other perspective, though, the scenario is horrifying. Imagine being able to see the probate proceedings for your estate from beyond the grave. You might see a mean-spirited side of your closest relatives, the dearest people in your life, that you never knew existed. To your surprise, you might find out that your carefully crafted plans to leave all your family members a fair share of your estate ended up causing hurt feelings and discord. If you made mistakes in your estate plan, you would be watching from the next life, seeing creditors claim assets that you thought you had protected. Even worse, you might find that your relatives don’t even agree about which version of your will is legally valid. What if you could start probate while you were alive to solve some of those problems if they arise. New York does not allow pre-mortem probate, but some states do. In New York, your best hope is to put an airtight estate plan in place now, while you are alive and healthy. For help ensuring that your estate plan is free of ambiguities, contact a Bronx estate planning lawyer.

How Does Pre-Mortem Probate Work?

During pre-mortem probate, the testator opens the state for probate while he or she is alive. The testator appears in court personally, and the probate court can question him or her to determine that the will is genuine and that the testator was of sound mind when he or she wrote the will. When the testator dies, even if it is many years later, the probate court has a record of the testator’s testimony that the will is valid, thereby preventing disputes over undue influence.

The states that have pre-mortem probate laws implemented them during guardianship cases. In these cases, the testator wrote the will under alleged undue influence, and the testator’s vulnerability to undue influence was what prompted the family to believe that the testator required guardianship.

If Not Pre-Mortem Probate, Then What?

New York law does not allow for pre-mortem probate. Therefore, the best thing you can do here to avoid probate disputes is to make your estate plan as official and as thorough as possible. When you write your will, let the people you trust the most know that you have written the will, even if they are not among the witnesses who signed it in this capacity. If you suspect that a family member will challenge your will, you can prevent this with an in terrorem clause. This means that you leave the prospective challenger an inheritance, no matter how small, in your will, but the in terrorem clause states that any beneficiary who challenges the will forfeits his or her share of the estate, regardless of whether the challenger prevails in the challenge.

Schedule a Confidential Consultation With a Bronx Estate Planning Attorney

An estate planning lawyer can help you make an estate plan that prevents challenges during probate.  Contact Cavallo & Cavallo in the Bronx, New York to set up a consultation.

Source:

nysba.org/the-viability-of-pre-mortem-probate-in-new-york/