Arkansas Law Review
Most jurisdictions within the United States currently utilize the post-mortem model of probate. Under this theory, an individual of legal age and of sufficient mental health plans for the distribution of his bounty at death. These distribution plans are then formalized by being scribed into his last will and testament, which then awaits the death of its writer so that at the time of probate, it can be read once again to proclaim donative intent and assure that the estate is distributed in accordance with the testator’s desires.
While this theory of probate sounds proper, experience has revealed that in many cases it serves only to destroy the very intentions which it is designed to protect. Post-mortem probate provides a feeding ground for spurious will contests which eat away the corpus of an estate no longer protected by the evidentiary power that lies buried with the testator.
An alternative to post-mortem probate is to validate the testator’s will during the testator’s lifetime. This is known as ante-mortem or living probate. A thorough discussion of the problems with post-mortem probate and demonstration of the ways in which conventional techniques fail to adequately resolve these difficulties supports the argument that ante-mortem probate should be given serious consideration. It has significant benefits, and any potential problems can be readily surmounted or counterbalanced.
Aloysius A. Leopold and Gerry W. Beyer, Ante-Mortem Probate: A Viable Alternative, 43 Ark. L. Rev. 131 (1990).