Worried your will may get challenged after you die?

If you fear that someone may challenge your will when you die, you should consider taking advantage of North Dakota’s Ante-Mortem Probate of Wills statute. North Dakota has a seldom-used law that allows a person to essentially probate her will prior to death.

North Dakota is one of the few states that have adopted these laws, but it is likely more states will continue to adopt these laws to combat the biggest problem with will challenges — the person whose wishes were written in the will is dead and cannot defend her own wishes against the challenge. As will challenges continue to be common, this law can give the testator (the person doing the will) peace of mind knowing that her will will be held up after she dies.

Use the example of when Mom decides to leave more to her daughter than her son, and the son knows that Mom is going to leave him less in the will. If Mom (who is mentally competent and acting on her own accord) suspects that her son will likely fight her will when she’s dead, because then she cannot provide the context of why she made the choices she did in her will, this process might be an option for her. While there are certainly pros and cons to this process from a legal perspective, the benefits to someone whose will likely will be challenged are vital.

The process allows someone who has executed a will disposing of her estate to initiate a proceeding for a judgment declaring the validity of that person’s will. The will needs to be properly executed (witnessed, etc.), and any beneficiary named in the will, as well as all of the testator’s present intestate successors (meaning those who would benefit if the person died without a will, such as her children) must be named parties to the proceeding.

If the court finds the will has been properly executed and the testator has the requisite testamentary capacity and freedom from undue influence, the court shall declare the will valid and order it placed on file with the court. Undue influence is essentially when someone else is trying to exert improper influence upon a person over how she leaves her property. Lacking testamentary capacity means a person does not have the mental capacity to execute a will, which could render the will invalid.

A finding of validity by the court shall constitute an adjudication of probate, meaning the will shall be binding in North Dakota. You can change your will again after that but there is an additional proceeding required which is one of the downsides of this process. Will contests are typically an expensive process — before or after death.

If you or anyone close to you wants your will to be upheld when you die and you are concerned that someone, such as your child, may contest your will after your death, this may be a little-known area of the law that you should pursue.

BERLY D. NELSON

This article was prepared by Berly D. Nelson, a shareholder attorney with the Serkland Law Firm in Fargo. He practices in the areas of commercial and general civil litigation, including a focus on trusts and estate litigation. For more information, call 701-232-8957, email bnelson@serklandlaw.com or visit serklandlaw.com.

This article should not be considered legal or tax advice and should not be relied upon by any person with respect to his/her specific situation.

WORDS : AUBREY TYSON PHOTOGRAPHY : MIKE SMITH