Liza Horvath, Senior Advocate: Is ante-mortem probate the solution?

Peninsula Premier Admin

Question: You have written about a dad who left his house to a neighborhood friend and the kids are preparing to challenge that bequest. We have a similar situation brewing in our family. No neighbors are involved but I am certain my brother will file a trust contest when mom dies because she has decided to leave more to me than to my brother. This is because I do not make much money and my brother is well off. Is there a way that we can determine now, while my mom is still alive and has all her marbles, whether my brother will contest her plans? Is there a way to get it out into the open so questions can be answered and the document holds up after mom is gone?

Answer: One manner of accomplishing what you are asking is to seek an ante-mortem probate. Translated, probate before death. This is where a will or revocable trust is presented to the court and interested parties are noticed of the hearing. If one of the parties has an objection, the hearing gives them a chance to state that objection. If no one objects and the judge feels the plan is appropriate and, provided the settlor or testator (maker of the trust or will) is of sound mind, the judge can validate the will or trust. Ante-mortem probate would, most likely, preclude a post-death contest.

While nine states have legislation authorizing ante-mortem proceedings to validate documents, California does not. However, there may be a workaround in California. This is a bit technical, but while your mom “is still alive and has all her marbles,” she can ask an attorney to seek “declaratory relief,” under California Probate Code sections 15800 and 17200. If your mom had already lost capacity you, as a beneficiary, could file a similar kind of action.

Alternatively, it is possible to go to one of the nine states that have legislation expressly authorizing ante-mortem probate. Alaska is one of the states with the easiest hurdles to clear to file a case.

If your brother does not agree with your mom’s disposition, he would need to prove that she either lacks capacity, is under undue influence or duress, the document is fraudulent or there was a mistake, among other things.

Both the California method and use of another state’s courts have not been thoroughly tested so you would need to carefully consider either option. An easier approach could be to have mom sit down with your brother, outline her plans and explain why she is leaving you more than he. It would not preclude a later legal action but maybe reason and logic could prevail.

Question: You really slammed the contingent fee structure in a recent column. I was in a car accident – no fault of my own and, had it not been for a great attorney who was willing to be paid out of what we won, I would have walked away with nothing. For people who do not have the money to pay lawyers by the hour, a contingent fee is the only hope we have for decent legal representation.

Answer: Excellent point. While contingent fees can open the door to abuse of our legal system, that is not always the case. The bottom line is that the strength of our legal system continues to be dependent on the ethics of those in practice.

Liza Horvath has over 30 years’ experience in the estate planning and trust fields and is a Licensed Professional Fiduciary. Liza currently serves as president of Monterey Trust Management. This is not intended to be legal or tax advice. If you have a question,call (831)646-5262 or email liza@montereytrust.com

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