• 25
  • March
    2011

There are many securities that come with the creation of a will. Depending on the family dynamic, a testator may take great comfort in the fact that family members and potential beneficiaries will not know of the will's gifts, or lack thereof, until after the testator has passed away. Others, however, may wish to preemptively inform beneficiaries of the gifts contained in the will, in order that they may be able to ensure that their wishes are met while they are still able to.

Although Florida law does not allow for such pre-mortem rulings in the estate planning process, a small but increasing number of states are allowing testators and beneficiaries to utilize such procedures. States like Alaska, Nevada and North Dakota have created pre-mortem processes with the hopes of attracting residents of other states to establish wills and trusts in their states.

Pre-mortem hearings essentially force potential beneficiaries to file legal contests before the death of the testator. The exact procedure varies from state to state, but generally, beneficiaries have between 30 and 120 days after they are notified of the contents of the will or trust to contest the document. If they do not act within that deadline, they are banned from contesting the will or trust after the testator's death.

There has been criticism of the pre-mortem process by those who claim that it is unnecessary, and that the probate process should be sufficient to ensure that the testator's desires are met. However, others claim that it can make a potentially tricky probate process much less complicated, by allowing the testator to testify as to the exact meaning and intent behind the will or trust.

Source: Wall Street Journal, "A Will and a Way", 3/21/2011