The idea is being floated that New Jersey create a mechanism for “pre-mortem probate” – a court approving your will before you die.

When an individual dies, their will must be probated, or approved by a court, before the assets under their will can be distributed. Usually probate is a smooth and easy process, but occasionally there is a dispute regarding the will. This sometimes happens when the testator (the person whose will is being probated) had an estranged child, or a new spouse and children from a prior marriage, or left money to close friends instead of distant relatives.

When someone brings a will contest, challenging the validity of a will, the court has to determine whether the will really reflects the testator’s intent, or whether someone unduly influenced the testator, or the testator lacked capacity, or other cause exists to invalidate the will. The problem is, these questions revolve around the testator’s state of mind, and the testator is no longer around to ask.

Pre-mortem probate allows a testator to submit a will to court for approval before he dies. That way, the judge can ask the testator delicate questions about undue influence and capacity while he’s still alive, instead of relying on extrinsic evidence. The idea is to prevent will contests and ensure that the testator’s wishes are carried out.

This idea has its flaws, but all in all, I’m in favor of it. Occasionally we have clients who are concerned a relative will challenge their will. We’re able to offer our clients some options to head off will contests, but none are as bulletproof as having a court probate the will in advance. Pre-mortem probate would give people a new way to ensure that their wishes are carried out, and have the peace of mind that comes with that certainty.

Five states, including New Hampshire, have passed laws allowing pre-mortem probate. New Jersey may eventually join that list.

For specific advice on wills, probate or estate administration, call or email us.