Can You Take Action Under a Last Will Before Probate?

by Heather Frances Google

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.

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.