CAN I MAKE SURE MY WILL IS VALID WHILE I'M STILL LIVING?

Probating ones' estate after death can be a lengthy, time consuming process that has the potential to financially and emotionally drain the family members of the deceased.  Until recently, wills and codicils to wills were not declared valid or invalid until after death.  Recent changes by the North Carolina Legislature to the statute provides that a testator (the person executing the will) can now ask the court to declare, prior to their death, that their will is valid.  This process is only available in a few states and is now available in North Carolina through Senate Bill 336.  

Who may file?  

Anyone who is a resident of North Carolina and who has executed a will or codicil may file a petition with the Clerk's office.  The person who files to have their will declared valid is called the Petitioner.

How does it work?

The Petitioner must provide evidence to the Clerk of Superior Court to establish that the will or codicil would be admitted to probate if the Petitioner were deceased.  If an interested party contests the will or codicil, the Clerk will transfer the matter to superior court as if it were a caveat proceeding.  If no interested party contests the validity of the will or codicil and if the Clerk determines that the will or codicil would be admitted to probate if the Petitioner were deceased, the Clerk will enter an order stating that the will or codicil is valid.  

Where should the Petitioner file?

The Petitioner must file in the county where the Petitioner lives.  

What should the petition say?

1.  a statement that the Petitioner is a resident of NC and specifying the county of the Petitioner's residence

2.  a statement that the Petitioner had testamentary capacity at the time the will was executed

3.  a statement that the Petitioner was not under undue influence and duress

4.  a statement identifying the Petitioner and all interested parties

What is the effect of a declaration by the Court?

If the Court enters a judgment declaring that the will or codicil is valid, this is binding on all interested parties.  All parties will be barred from challenging the will or codicil in a caveat proceeding when the will or codicil is entered into probate after the Testator's death.  

This change to the statute is a great tool to make a preemptive move to streamline the probate process for the Testator's family.  There are many other estate tools that will serve to make the probate process more manageable, and an experienced estate attorney can make these tools available.