Imagine how many Will contests would be eliminated if the testator were available to say that his Will accurately expressed his intentions. Now, in some states it’s possible to do just that – even without a séance! Earlier this summer, Alaska became one of just a few states to give testators the option of validating a Will prior to death. The law also allows for the pre-mortem validation of Trusts.
Under Alaska’s pre-validation process, interested parties (including the intestate heirs) are served with a copy of the Will or Trust, and they have a deadline for filing a challenge. If they don’t contest the Will within the specified period of time (about 4 months), then they permanently lose the right to contest it. If there is a challenge, then the testator of the Will (or grantor of the Trust) is on hand to testify as to the validity of the document. Of course, seeing a challenge, the testator may decide to disinherit the contestant altogether.
Non-residents as well as residents can avail themselves of the process, but the consensus seems to be that out-of-state residents will have more success pre-validating their Trusts in Alaska than pre-validating their Wills. This is because a Trust is a separate legal entity that is itself a “resident” of a particular state, while a Will is a document that has to be probated in the testator’s state of residence. It seems uncertain, for example, that a Wisconsin probate judge would uphold the out-of-state pre-validation of a Wisconsin resident’s Will.
For Alaska residents, though, the law could help defuse potentially volatile estate battles, especially those involving blended families or same-sex couples.
Arkansas, North Dakota and Ohio are other states that allow pre-validation of Wills, and Delaware allows pre-validation of Trusts. Is this an emerging trend or just a fluke? It will be interesting to see if other states join in.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Road, Suite 240
San Diego, CA 92124