In some situations it may be beneficial for a person to probate their will while they are still alive. This is called “Living Probate” Young, Moore, and Henderson have an experienced group of professionals who can assist families in seeking the probate of a will while the testator is still alive. The following is a general discussion of the rules that apply to an action for Living Probate.
1) A petition for living probate of a will is a contested estate proceeding.
2) N.C. Gen. Stat. § 28A-2B-1 states:
If an interested party contests the validity of the will or codicil, that person shall file a written challenge to the will or codicil before the hearing or make an objection to the validity of the will or codicil at the hearing. Upon the filing of a challenge or the raising of an issue contesting the validity of the will or codicil, the clerk shall transfer the cause to the superior court. The matter shall be heard as if it were a caveat proceeding, and the court shall make a determination as to the validity of the will or codicil and enter judgment accordingly.
If no interested party contests the validity of the will or codicil and if the clerk of superior court determines that the will or codicil would be admitted to probate if the petitioner were deceased, the clerk of superior court shall enter an order adjudging the will or codicil to be valid.
3) N.C. Gen. Stat. § 28A-2B-2 states:
The venue for a petition under G.S. 28A-2B-1 is the county of this State in which
the petitioner whose will or codicil is the subject of the petition is domiciled.
4) N.C. Gen. Stat. § 28A-2B-3 states:
(a) Petition. — A petition requesting an order declaring that a petitioner’s will or codicil is valid shall be verified and shall contain the following information:
(b) The petitioner shall file the original will or codicil with the petition. If an order is entered declaring the will or codicil to be valid, the court shall affix a certificate of validity to the will or codicil.
5) N.C. Gen. Stat. § 28A-2B-4 states:
6) N.C. Gen. Stat. § 28A-2B-5 states:
Following the entry of a judgment, a party to the proceeding may move that the contents of the file be sealed and kept confidential, and upon such motion, the clerk shall seal the contents of the file from public inspection. The contents of the file shall not be released except by order of the clerk to any person other than:
For good cause shown, the court may order the records that are confidential under this section to be made available to a person who is not listed in this section. Following the petitioner’s death, a sealed file shall be unsealed upon the request of any interested person for the purpose of probate or other estate proceedings.
7) N.C. Gen. Stat. § 28A-2B-6 states:
Costs, including reasonable attorneys’ fees, incurred by a party in a proceeding under this Article shall be taxed against any party, or apportioned among the parties, in the discretion of the court, except that the court shall allow attorneys’ fees for the attorneys of a party contesting the proceeding only if the court finds that the party had reasonable grounds for contesting the proceeding.
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