Can You Take Action Under a Last Will Before Probate?

By Heather Frances J.D.

Until the person who wrote a will (the testator) dies and the will is accepted by the probate court, the will has no legal effect. Thus, no one can take action under the will before probate. Important tasks, such as managing the testator's property and sometimes even appointing a guardian for his children, cannot legally be done until the court accepts the will.

Until the person who wrote a will (the testator) dies and the will is accepted by the probate court, the will has no legal effect. Thus, no one can take action under the will before probate. Important tasks, such as managing the testator's property and sometimes even appointing a guardian for his children, cannot legally be done until the court accepts the will.

Wills Can Change

A will is not a legally binding document until the testator dies; therefore, no one can act to execute it during the testator's lifetime. In fact, the testator can change his will, or create a new one, at any time by complying with the same formalities as for the old will. A testator can even revoke his will at any time before his death and die without a will. Until the testator dies, his will is neither final nor binding.

Protect your loved ones by a legally binding will. Make a Will Online Now

Purpose of Probate

The purpose of the probate process is to legally transfer ownership of the decedent’s assets. Unless a particular asset passes automatically to a named beneficiary under contract law, such as life insurance death benefits, everything the decedent owned is part of the probate estate; the assets must go through probate before they can be legally distributed.

Submission to Probate

No representative can be appointed to manage or distribute the estate's assets until the will is submitted to and approved by the probate court. This acceptance process allows the court to determine whether the will is valid. For example, a will that is not signed by two witnesses might not be valid in your state. The court will also appoint the estate representative, often called the executor, to carry out the terms of the will, but the executor has no authority to act on behalf of the estate until the court makes that appointment, even if he is nominated in the will. State law may also require the executor to take an oath and post a bond before he can take any actions under the will.

Guardians

In addition to distributing property, a will can name a guardian for the testator’s minor children. However, like naming an executor, the testator’s designation of a guardian isn’t effective without court intervention. In some states, it may be submitted to family court in a separate guardianship proceeding, while in other states, the same probate court handling the decedent's estate also handles the guardianship appointment.

Protect your loved ones by a legally binding will. Make a Will Online Now
New York Estate Law When the Executor Dies

References

Related articles

Who Enforces the Execution of a Will?

In drafting your will, you may appoint a person to serve as your executor, also known as a personal representative. This person will have the responsibility of carrying out your wishes pursuant to the will. Because the executor has a number of responsibilities and can be held personally responsible if they are not properly carried out, carefully consider appointing someone who is trustworthy and capable of carrying out the somewhat complicated probate process.

Estate Administrator Duties

When a person dies, his estate will likely go through the probate process, whether or not he left a will. During probate, the estate will be collected, debts paid and remaining assets distributed to beneficiaries. The person assigned the duty of managing the estate through this process is called an administrator or executor. Since state statutes govern estate administration, the administrator must follow state law regarding procedures and time frames.

Do I Have to File a Will Through Probate?

Probate is a court-supervised administration of a will. Although not every estate passes by will, every will passes through probate in order to become effective. The executor -- either named in the will or appointed by the court -- steers the will into and through the probate process, collecting assets, notifying heirs, paying debts and ultimately distributing property.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Missouri Probate Court Procedures

Missouri’s probate courts are divisions of the circuit courts; they handle probate issues including the ...

Rights of Minor Children in Holographic Wills, North Carolina

North Carolina, like a few other states, recognizes holographic wills. These are wills written entirely by hand by the ...

Is There a Statute to Probate a Will in Louisiana?

Like many states, Louisiana requires most wills to pass through probate before an estate is distributed. The ...

How to Settle an Estate After a Death Without a Lawyer

When it's time, a probate court will handle your estate. State law and court rules govern the process, so they can vary ...

Browse by category