If you ask how long a typical probate process takes, the answer is “it depends.” Every probate process varies by state and by individual case because of the different requirements and procedures that may apply. While there are ways to avoid probate, some states will require it in certain circumstances.
Probate, which is a court-supervised of sorting and administering a person’s estate, begins upon a person’s death. A person can pass away either intestate or testate. If the person passes away testate, the property will be transferred to the beneficiaries named in the decedent’s will. If the person passes away without a valid will, the property will be distributed according to state’s intestate succession laws. Either way, the probate court will be in charge of supervising, distributing, and administering the decedent’s estate. The court will also be in charge of settling any legal disputes regarding the estate or the validity of a will.
In a will, a person usually names a specific person as an executor, who will be responsible for managing the decedent’s affairs. If the decedent fails to name an executor or dies intestate, the probate court will appoint a personal representative to fulfill the executor duties.
The probate process begins when the executor presents the will for probate at a probate court where the decedent lived or owned property. The court will first collect all of the decedent’s property. Then, the estate will pay any debts, claims, and taxes that are outstanding. After necessary papers are filed and approved, any remaining property will be distributed to the appropriate heirs.
The length of time for probate depends on several factors, such as the size of the estate, the number of taxes and debts to pay, tax issues, the number of heirs, and any contested issues of a will. A typical probate process will take up to 24 months from the date of the decedent’s death. However, in cases of contested issues or lawsuits, the process may take up to several years, or even decades, to settle the issues and conclude probate.
Basic Timeline And Specific Steps For A Typical Probate Process.
Duration Probate Process Description
1 to 4 months Prepare and file “petition for probate” by:
• Proving the validity of a will
• Choosing an estate administrator, executor, or representative
• Identifying all heirs and other relatives
3 to 4 months • Court hearing on petition for probate
• Issue the following documents, if applicable:
• Letters of administration
• Letters testamentary
• Orders for probate, duties and liabilities
3 to 5 months Issue probate bond (if ordered)
3 to 6 months Notice to creditors
6 to 12 months • Notice to Department of Health Services (if the decedent received medical benefits)
• Estate inventory and appraisal to calculate the estate’s value
• Pay bills and taxes:
• All applicable taxes, state and/or federal
• Estate administration costs
• Family allowances
• Accept or deny creditor claims
• Notice to franchise tax board (if the heir is an out-of-state resident)
8 to 15 months
Tax clearance letters
7 to 24 months • File petition for final distribution and accounting
• Hearing on petition for final distribution and accounting
• Order approving final distribution and accounting
• Distribution of assets to heirs
• Final discharge order
• Final distribution of estate funds, concluding probate
Probate Costs and Fees
The probate process involves certain fees and costs, such as attorney’s fees, the executor or personal representative fees, and court costs. These fees typically come out of the estate itself, which makes the heirs to get less portion of the estate. Because probate can be costly and time consuming, people tend to look for other options to avoid probate. If there is a will, the person named as the executor of the estate should be the one to apply for a grant of probate.
If no will exists, a close adult relative can apply for a letter of administration, which will grant them the same rights as a grant of probate would. The applicant is known as the administrator of the estate, rather than the executor.
Preparing To Apply For Probate
You’ll need to take into account:
• The total value of any funds, property and belongings. To do this, you’ll need to reach out to the bank, pension providers and any other financial institutions holding assets. You’ll also need to get any property valued by an estate agent.
• Any debts. Contact utility companies, loan companies, and mortgage and credit card providers to see how much (if anything) the person who has died owed to others.
• Gifts. If the person who died gave gifts beyond the official allowance in the seven years before their death (don’t worry – birthday and Christmas gifts usually don’t count) these may be subject to IHT. You’ll need official copies of the death certificate and the will (if there is one) to get this information from various organizations. Once you have it, you’ll be able to establish whether any inheritance tax needs to be paid. You’ll also know whether a grant of probate or letter of administration is necessary.
Applying For Probate Online
If the person who has died made a will, you may be able to apply for a grant of probate online. You’ll need:
• An official copy of the death certificate (you will be asked to share a scanned image)
• The original will
• The application fee
You can only apply online if:
• All the executors named in the will are alive and able to make their own decisions
Applying For Probate without a Will
Applying for probate without a will is broadly the same process as applying for probate when there is a will. The difference is:
• You apply by post, using form PA1A
• Since there is no executor, a close relative needs to be the one who applies for permission to administer the estate
• You’ll be given something called a letter of administration, which serves the same purpose as a grant of probate
• The estate will also need to be settled according to intestacy law, rather than the wishes stated in a will
What Happens After Probate Is Granted?
Once you’ve completed the application, you should receive the grant of probate or letter of administration within 20 working days. If it’s refused, the probate office will contact you to tell you why this has happened Once you have the grant or letter, you’ll be able to access all the assets owned by the person who has died, pay any debts and taxes owed, and carry out the terms of the will (if there is one).
Types of Probate
Important things to consider with types of probate:
• Value of the estate
• Assets involved
• Estate liquidity
• Litigation
• Beneficiaries and heirs
• Executor or Personal representative
Multiple types of probate exist, which can influence the length of time it takes to be completed. Many states have two basic types of probate, which are generally formal and informal, though they can go by other names. Informal probate may also be called small estate probate. It’s designed for estates with a low value, which may vary by state. There are usually very few if any creditors, which mean distribution, can happen quickly.
Formal probate is more complicated and requires a longer timeline. However, in some states, it can be broken down into supervised and unsupervised probate. Unsupervised probate means the court doesn’t oversee all the steps in the process. The executor takes care of their tasks and provides a report at the end of probate. With supervised probate, the court is involved in every step of the process. The executor may be unable to make any decisions without the court’s approval. If this is the case, the process will take much longer because every action must go through the court before it can be carried out.
Value of Estate
The value of the estate has a direct impact on how long the process will take. If the estate is below a certain dollar amount, it may go through small estate probate, which is faster and less involved. A larger estate has more assets to inventory and liquidate, which can lead to many months before probate can be completed.
Assets Involved
The type of assets in the estate also has a direct bearing on the timeline for probate. Assets that are difficult to convert to cash will take longer to be distributed. For instance, if the deceased owned a business, the executor will be responsible for selling it to a new owner or closing the business and selling the inventory. Much paperwork is involved and it can take some time to transfer ownership.
Estate Liquidity
The liquidity of the estate is another factor in the probate process. If most of the assets of the estate are in cash, the process will go much faster. On the other hand, assets that are difficult to liquidate will extend the process until the executor can get them sold for cash to pay the creditors and heirs.
Litigation
Litigation occurs when someone contests the will. It can also happen if a beneficiary or heir accuses the executor of wrongdoing. If the deceased person was involved in a lawsuit before their death, the estate essentially takes the place of the person in the litigation. The estate cannot be settled until the case is finished. Legal issues can prolong probate by months or even years.
Beneficiaries and Heirs
Beneficiaries and heirs can have a major impact on how long probate will take. If someone comes in to dispute the will, it must go through the court to determine if their claim is legitimate. If a person who isn’t named in the will lays a claim as an heir, the court will have to decide if they have a right to the estate. In other cases, the heirs may dispute the way the estate is divided up. In other cases, it may be about who gets a physical asset. For example, one sibling may want to keep their parents’ home while the others want to sell it. If they are equal heirs to the property, they will need to settle this dispute before the property can be sold. If the disagreements go through the court, the process can be extended by several months or even longer.
The Executor or Personal Representative
The executor has a direct impact on the timeline for probate. While they are required to meet certain deadlines, in other instances they can take months to complete the task. One area where they may lengthen the time is in handling inventory or liquidating assets.
How Long After Probate is a Will Settled?
Once probate is opened, it can take months or even years for the will to be settled. The executor must follow state laws and meet specific deadlines. However, many factors can influence just how long the process will take.
Bureaucracies
There is a lot of red tape in probate, especially in large estates. In some types of probate, the court must approve every step. This can lead to a lengthy timeframe as the executor must show proof of everything they do.
Illiquid Assets
Assets that aren’t easy to liquidate will impact how long it will be before the will is settled. If the deceased person was part-owner in a business, it can take some time to transfer ownership and receive their part of the business’ value. Real estate and rare collectibles are also time-consuming when it comes to liquidation. It can take months or years before they are sold for their value and the money added to the estate.
Estate Tax
Some states require an estate tax to be paid before distribution to the heirs. This tax is based on the value of the estate as determined by the executor at the time of death for the estate owner. They must pay the tax before the estate can be distributed. There is a federal estate tax along with some state taxes. Some states use the inheritance tax instead of an estate tax, which makes the heirs responsible for paying taxes on the amount they receive.
Legal Assistance
Individuals who are considering drafting a trust or a will may wish to consult with an estate planning lawyer. He or she can explain the advantages of using a trust as well as a will. He or she can make recommendations based on the specific considerations of the client. He or she may even recommend using both documents, such as by using a pour-over will that places any property owned at the time of the testator’s death into the trust.
