There are a handful of states that allow a person to probate a will (and challengers to contest the validity of a will) before the testator (the person enacting the will) dies. In recent years, there has been a trend to expand the practice to more states. I had an interesting discussion about this issue at the recent Heckerling conference, and I wrote this blog post to discuss why I think the practice is a bad idea.
First, some background: pre-death probate (also known as antemortem probate) is only permitted in a handful of states (including Ohio, Arkansas, North Dakota, and Alaska) because the traditional rule has been that a will doesn’t “speak” (meaning, take effect) until the death of the testator. As a result, no party had legal standing to contest the will prior to the testator’s death. The trend away from the traditional rule began several decades ago and has recently picked up some steam, as new legislation has been introduced in a handful of states in the past few years to permit antemortem probate and antemortem will contests.
While the antemortem probate schemes vary by state, in general, they permit a testator to seek a ruling from the court (while he is still alive) that his will is legally valid. Because all heirs have to be named as parties to that proceeding, it has the effect of binding any potential challengers to the determination, thereby preventing them from contesting the will at the time that the testator dies.
CONTINUE READING . . .
You’ve found the right partner; you’ve found the right ring; and your fiancee accepted. Now imagine your fiancee unexpectedly breaks off the engagement. You are devastated. Your friends tell you there are plenty of fish in the sea. You’ve returned her favorite CDs and she’s returned your college sweatshirt. But who keeps the engagement ring?
With the end of 2016 upon us, now is a fitting time to look back at some of the top estate disputes from this past year. 2016 was a typical year in that, unsurprisingly, people continued to die and families continued to fight over estates.
The Virginia General Assembly overhauled Virginia’s elective share statute this past year, and one of the big results will likely be an increase in litigation.
Imagine this potentially devastating situation. Your spouse unexpectedly dies. You find his will and discover, shockingly, that he left everything to his adult son (or his mistress)! Is there anything you can do?
Here’s my prediction: do it yourself wills, also referred to as “homemade wills” or “online wills” or “internet wills” (I’ll refer to them in this blog post as “DIY Wills”) will result in a significant (though not massive) increase in estate litigation, but society won’t see that spike for another decade or two.
This blog post explains how long term care facilities (LTCFs) can consider utilizing guardianship and conservatorship petitions for problematic situations where a resident has named an agent under a power of attorney (POA), and the agent fails to pay the resident’s bills, thus jeopardizing the resident’s wellbeing.
Who would be the beneficiary of the estate of Darth Vader? The answer is more than just an exercise in Star Wars fiction; in fact, the answer can teach us important lessons about estate disputes in our real world. In case you did not read my earlier blog post, in which I asked the same question about Han Solo’s estate, you can find that post 
My goal in this blog post is to discuss character traits of elder abusers so that you can recognize them and hopefully protect yourself, your family, and your friends. I’ve handled over 100 estate disputes, and in a sizeable number of those cases, elder abusers committed an array of unethical actions including isolating, threatening, and pressuring elderly people to change their estate plans.
There are several things that all estate planning attorneys (and those who advise them) need to be aware of in light of the Virginia Supreme Court’s recent ruling in 
