The Commissioners' Model of Ante-Mortem Probate

Abstract

Most jurisdictions within the United States follow the post-mortem model of probate, wherein a person of legal age and of sound mind distributes his or her estate upon death. The distributions, as intended by the individual, are set forth in his or her will only to be disclosed upon death. At such time, the individual's estate is distributed according to his or her wishes. Experience has shown, however, that in many cases the traditional probate system has failed to preserve the very interest it was designed to protect--the intent of the testator. This article discusses the problems associated with the post-mortem probate model and the techniques utilized to avoid it.

As an alternative to post-mortem probate, few states have enacted ante-mortem probate statutes that allow a testator to validate a will during his or her lifetime. This article discusses the current models of ante-mortem probate and their attempts to resolve the problems with post-mortem probate. The focus of this article is to advocate for a new method of ante-mortem probate, the Commissioners' Model, as an alternative to post-mortem probate. The Commissioners' Model addresses the unresolved issues and the problems with the current ante-mortem probate models. While the Commissioners' Model is not the ultimate ante-mortem probate solution, it demonstrates that ante-mortem probate deserves serious consideration and can eliminate the traditional problems of post-mortem probate.

Keywords: ante-mortem probate, antemortem probate, pre-mortem probate, premortem probate, living probate, wills, will contests, estates, estate planning

JEL Classification: K11, K19, K39