Probate has a reputation for lasting just short of forever, but it can actually depend on many factors. Some estates settle or close within a few months, or even a few weeks. Others can take a year or longer. The process involves a good many steps, all of them necessary to move assets from the ownership of a deceased individual into that of a living beneficiary. The decedent’s taxes and outstanding debts must be paid before this can happen. All this often chugs along under the supervision of the court, and this can further slow things down. The process can stall entirely for a while when there are complications.
The executor, sometimes referred to as the personal representative, is in charge of managing the estate through the probate process. Sometimes, an attorney might be involved as well with larger estates. Where the personal representative lives in relation to where the attorney is located might not seem like a big deal in this day and age, what with all the modern technology at our fingertips. But the distance between the personal representative and the attorney can indeed make a difference.
A personal representative can drop by to take care of problems relatively quickly when closely located to the attorney’s office. But quick meetings just can’t happen when the personal representative lives far from the office or in another state. And keep in mind that almost all documents that are filed with the court require the original signature of the personal representative. Faxed or emailed signatures won’t do.
How Many Beneficiaries Are There?
Probate will take longer as the number of estate beneficiaries increases, particularly if they, too, live far from the attorney’s office or from the personal representative. This is simply a function of the time it takes to send multiple documents back and forth between numerous people who are located in many different places. It’s unlikely that any two beneficiaries will agree on everything that must happen with an estate, let alone three, four, or more of them. Some beneficiaries might even hire their own attorneys to monitor the probate process and these types of attorneys tend to nitpick over every action the executor takes. Suffice it to say that the more beneficiaries an estate has and the more they find fault with the process, the longer probate will take.
Is There Going to Be a Will Contest?
A will contest is a legal proceeding that’s initiated to invalidate a last will and testament. Will contests are based on one of four arguments, or sometimes a combination of them:
• The will was not signed with the proper legal formalities.
• The will was written as it was because of issues of fraud.
• The will was written under duress and undue influence by a beneficiary.
• The deceased lacked the mental capacity to create a will.
A probate proceeding will remain open for a very long time if a will contest occurs. These issues are typically resolved after lengthy court trials. Payment of taxes and a decedent’s debts are a major component of the process because transfers to beneficiaries can only occur after all this has been accomplished. And payment to creditors can take some time, depending on state law. Most states require that all known creditors must be sent notice, letting them know of the death and how long they have to make claims for the money owed to them. Some states also require that a notice for unknown creditors be published in a local newspaper, sometimes more than once for a period of weeks.
The deadline for filing creditor claims can vary considerably from state to state, from just 120 days in Utah, to as long as seven months in Utah, and an entire year. Closure of the estate will be delayed until this period has passed and all claims have been resolved. This might not affect smaller estates, however, if state law includes provisions for summary or simplified proceedings for these estates.
Is There a Will?
A big snarl can occur if the deceased didn’t leave a will. This doesn’t mean that the estate doesn’t have to be probated, but rather that the court will be more heavily involved in the process every step of the way. The judge will have to appoint someone to act as personal representative if deceased didn’t nominate anyone in a will. State law will determine which heirs will receive bequests from the estate and in what percentages. Even simple steps in the process will take longer than they would have if a will had been available.
Is the Estate Taxable?
It takes longer to probate an estate that owes estate taxes because a taxable estate can’t be closed until a closing letter is received from the Internal Revenue Service. A closing letter must be received from the state taxing authority as well if state estate taxes are also due. It can take anywhere from six to eight months after filing an estate tax return before receiving any type of response from the IRS. As a practical matter, however, very few estates are subject to the federal estate tax. Only those with values in excess of $11.58 million are subject to taxation on the balance at the federal level as of 2020.
How Complicated Are the Assets?
Probate should be relatively simple if an estate is comprised of just a couple of assets, like a house and maybe a bank account. The exact rules and requirements can vary by state, but many states make simplified probate options available when an estate isn’t complicated. The court will allow the transfer of assets to living beneficiaries based on a small estate affidavit in these cases. This type of “probate” can take as little as a couple of weeks. The total value of the deceased’s probate assets must usually fall below a certain dollar limit to qualify. Full-blown administration can get complicated and drag out if the estate is comprised of a house, a bank account, and an interest in the family business.
You can avoid probate of your estate entirely by funding your assets into a living trust. They would pass to living beneficiaries according to the terms stated in your trust formation documents so a probate case never has to be opened with the court. Of course, this assumes that you remember to title all your property in the trust’s name after you form it. Omitted assets would still require probate. You don’t necessarily have to go to all the trouble of creating a living trust, either. You might consider minimizing your estate by holding title to certain assets in such a way that they’ll pass automatically to living beneficiaries at the time of your death.
Talk to an estate planning attorney about the possibility of creating payable-on-death accounts or holding real estate with someone else with rights of survivorship. Any of these options might minimize your estate so it can qualify as a small estate and pass to your beneficiaries by affidavit.
So How Long Does Probate Take?
The probate process can take well less than a year if the personal representative and the beneficiaries get along, if the assets aren’t complicated, and if the estate isn’t taxable. Otherwise, it can drag on for a year or more. You can deal with Probate yourself, but there could be around 100 hours of detailed administrative work to complete, and you can be held liable if any mistakes are made in the Estate accounts or on any tax forms; which is why many people use a Probate Solicitor. In almost all cases the Probate Solicitors fees are paid for by the Estate and not by the Executor or Administrator of the Estate. Losing a friend or family member can be difficult emotionally, so our Probate Solicitors can take all the administration work from you to lighten the load and give you the time to grieve.
Life is often very busy these days, so you may not have the time to spend dealing with the administration of their Estate. By passing this burden on to a Probate Solicitor means that the Probate process is completed as soon as possible. As Executor of a Will, it’s your legal responsibility to complete the administration the Estate. If you take too long, there is every chance that the beneficiaries who will benefit from the Will could complain about you. Dealing with beneficiaries can be time consuming and costly.
The Probate Process
If you’re an appointed Executor, you’ll need to apply for a legal document called Grant of Probate, also known as a Grant of Representation. This can take around 4 to 6 months depending on how busy the Probate Registry (Court) is at the time of your application. Your main role as Executor is to carry out the wishes of the person who died as outlined in their Will. This relates to how they want their Estate to be given out and to whom. You often can’t start accessing bank accounts before you have the Grant of Probate in place, but it often depends how much money is in those accounts. Most banks and building societies set their own thresholds for when a Grant of Probate is required. Once you can access all of the Estate assets, you’ll need to make sure:
• All debts are paid
• Any money owed to the Estate is collected
• The Estate is valued
• An Inheritance Tax form is completed, whether any Inheritance Tax is owed or not
• All assets are distributed to the beneficiaries as instructed in the Will
There could be delays in completing the Probate Process. Some of the most common issues that cause delays are:
• Issues selling a Probate property
• Having international assets such as property abroad
• Trusts in the Will that must be dealt with separately
• Any overpayment of state benefits
• Locating beneficiaries
• Multiple bank accounts
• Complicated share agreements
The most common kinds of assets that pass without probate are:
• Joint Tenancy assets-when one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called “right of survivorship.”
• Tenancy by the Entirety or Community Property With Right of Survivorship-these are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.
• Beneficiary Designations-retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.
Most probate proceedings in Utah are informal. You can use it when the heirs and beneficiaries are getting along, there are no creditor problems to resolve and you don’t expect any trouble. The process begins when you file an application with the probate court to serve as the “personal representative” of the estate. (This is what most people think of as the “executor”). Once your application is approved, you have legal authority to act for the estate. Usually you’ll get what’s called “Letters Testamentary” from the court.
Once you get the letters, you need to do these things:
• Send out formal notice to heirs, beneficiaries, and creditors that you know of
• Publish a notice in a local newspaper to alert other creditors
• Provide proof that you’ve mailed notices and published the notice
• Prepare an inventory and appraisal of the estate’s assets
• Keep all the property safe
• Distribute the property (when the estate closes)
Unsupervised Formal Probate
A formal probate, even an unsupervised one, is a court proceeding. That means that a judge must approve certain actions taken by the Personal Representative, such as selling estate property, or distributing assets, or paying an attorney. The purpose of involving a judge is to settle disputes between beneficiaries over the distribution of assets, the meaning of a Will, or the amounts due to certain creditors. The informal probate process won’t work if there are disputes, so that’s when the court gets involved.
Supervised Formal Probate
A supervised formal probate is one in which the court steps in to supervise the entire probate process. The court must approve the distribution of all property in such a proceeding.
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.