Estate Planning

Pre-Validation of Wills and Trusts Before You Pass Away

By David M. Goldman

Over the past summer, Alaska has become one of a few states to allow pre-validation of a will. The state legislature also took the law a step farther and allowed trusts to be validated by the grantor before they pass away. In order to explain the new process it is essential to know how most states operate in the probate process. In Florida, if a beneficiary wishes to contest a will, the document must first be submitted to probate. The probate court will not allow probate proceedings to proceed unless the testator is deceased which eliminates the crucial witness of the document, the testator. For this reason, Florida subjects wills and trusts to a number of formalities in order to be deemed valid.

In their effort to reduce will challenges, the Alaska law allows the testator to accurately express their intentions before they die rather than allowing the process to occur afterward. The process first starts by notifying all interested parties and serving them with a copy of the will or trust. The parties then have a specific deadline for filing a challenge to the document, usually 3 to 4 months, before they permanently lose the chance to contest the will. If there is a challenge, the testator will be there to confirm the validity of the document. Since a court can verify duress, undue influence, and capacity while the testator is testifying, the judge can make a final ruling on the authenticity of the will or trust.

Although Florida has not adopted any law of this kind, Alaska allows non-residents to take advantage of their laws. However, a will must be probated in the decedent's state of residence so it is doubtful a Florida court will give any significance to an pre-validated Alaska will. On the other hand, trusts are separate legal entities from their creator so pre-validating this document may prove critical in probate proceedings. A Florida Estate Planning Lawyer offer assistance to your estate plan and answer any further questions concerning wills and trust documents.

Full post as published by Florida Estate Planning Lawyer Blog on August 24, 2010 (boomark / email).