Can You Establish the Validity of Your Will or Trust Before You Die?

If you’ve made the tough decision to disinherit a child or other relative in your estate plan, then chances are you’ve increased the likelihood that your decision will be challenged after you die.  But what if you could head off the challenge before you die?  A handful of U.S. states now allow for just that – a legal process that lets you validate your will or trust while you’re still alive and kicking – you can do this in Alaska, Arkansas, Delaware, New Hampshire (which just passed its law in July 2014), Nevada, North Dakota and Ohio.

While the pre-death process for validating a will or trust varies, in general the steps involved are as follows:

  1. Named beneficiaries of the will or trust and disinherited heirs are notified of the existence of the will or trust and its contents.
  2. Named beneficiaries and disinherited heirs then have a limited number of days (from 30 to 120 days depending on state law) to bring a legal court challenge to the will or trust.
  3. If a legal challenge is not filed within the applicable time period, then the named beneficiaries and disinherited heirs are barred from challenging the contents of the will or trust after the testator or trustmaker dies.

The driving theory behind this process questions why you should have to wait until after your death to let your family challenge your estate planning decisions since you won’t be around to defend your actions.  Instead, you should be able to force the issue while you’re alive and well and fully capable of defending your decisions.

But while the pre-death validation of an estate plan may look good on paper, there are several questions about the process that remain unanswered:

  • What happens if you go through the process but later decide that you want to change your estate plan?  Then you’ll most likely have to go through the process again, and if you don’t then you’ll leave the door open for a post-death challenge of the revised plan.
  • Will the pre-death process carried out in a state that permits it stand up in a state that doesn’t?  For example, you could go through the process in one of the states that only allow residents to take advantage of it, but then move to a state that doesn’t recognize it.
  • What about real estate that you own in a state that doesn’t recognize the process?  The laws of the state where real estate is located generally dictate what happens to the property after death, so while your disgruntled heirs will be barred from challenging your final wishes in your home state, they may still be able to challenge the distribution of your out of state real estate after your death.
  • What if the person who pre-validates their estate plan later marries, divorces, or has more children, or what if a beneficiary named in the estate plan dies?  Will the plan need to be validated again because a new beneficiary has come into play?

These are just a few examples of how the pre-death validation of a will or trust could end up being a waste of time and money.  So while these laws may look good on paper, the process appears to have quite a few kinks that need to be worked out before it becomes a practical solution to head off a will or trust contest.