Estate Planning, Probate & Estate Administration

Probate: Why not take care of it while you’re alive?

Q: Don’t want your family fighting after you are gone?

A: Probate your estate plan while you are alive.

This process is known as ante-mortem probate. The Arkansas Ante-Mortem Probate Act was passed in 1979. Ark. Code Ann. § 28-40-201 et seq. It provides testators (the people making the Will) the right to go to court during their lifetime and have their Wills validated against challenge. The proceeding allows judicial evaluation of the testator’s capacity, intent, and freedom from undue influence or fraud during the testator’s lifetime, which has the obvious benefit of the presence of the testator at the proceedings.

 

The ante-mortem probate procedure is seldom used. I think to process is going unused mostly because people are unaware they can have their Will probated before their death. It might also be that unpopular because people would rather offend family members after they are dead. It is less confrontational that way. Also, more Arkansans are using living trusts as their main estate planning tool. Wills are effective estate planning tools, but must be probated to be effective. Ark. Code Ann. § 28-40-104. Trusts do not have to be probated, so they are much harder to challenge. For more differences see Wills vs. Trusts.

 

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