Alternative Models of Ante-Mortem Probate and Procedural Due Process Limitations on Succession
In this Article, we shall challenge that assumption and propose a workable scheme of ante-mortem probate that both protects the testamentary plan against strike suits and preserves the confidentiality of the plan during the testator’s lifetime. Section I reviews the conservatorship model as developed by Professor Langbein and identifies its objectionable features. In Section II, we address the general constitutional question of what property interests command due process protection. This context poses the constitutional problem narrowly, but our analysis has broad implications regarding constitutional notice requirements for any probate reform. Concluding in that Section that due process does not compel notice and a right to appear for expectant heirs and legatees, we prepare in Section III an administrative design for a no-notice version of ante-mortem probate. Our discussion anticipates prudential objections to the model, offering a possible exception to the no-notice provisions to favor the nuclear family, an exception we ultimately reject.