Aug 1, 2007 12:00 PM, By Charles F. Gibbs, partner, and Brian Corrigan, associate, Holland & Knight LLP, New York

By: By Charles F. Gibbs, partner, and Brian Corrigan, associate, Holland & Knight LLP, New York

“Pre-mortem probate” — surely that's an oxymoron? A will becomes effective only upon the death of its maker. To probate a person's last will and testament, meaning to prove the will's validity, months or even years before the person dies seems problematic, to say the least. What if the testator makes another will later? If the court finds a will invalid pre-mortem, are later codicils invalid as well?

In reality, “pre-mortem probate” is a misnomer. Actual probate does not take place. Instead, the proceeding results in a judicial finding about the validity of a particular will before the testator dies. Such a judgment does not vest the interests of a legatee under this “pre-probated” will. It also does not preclude the testator from revoking the “pre-probated” will or making another, superseding will later.

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