How Long is The Probate Process
In the wake of a loved one’s death, the prospect of enduring a seemingly never-ending probate process elicits a combination of fear, anxiety, anger, and frustration. This is why it is extremely common for people to ask, “How long does the probate process take?” Here is the answer – it depends. Yes, you read that correctly. There is no concrete amount of time for the probate process and even a “best guesstimate” would be impacted significantly by your unique circumstances, your probate attorney’s expertise, and the probate court overseeing your case.
Despite the lack of an exact timeframe, there are general estimates for how long is probate that have been examined by respected and reputable legal organizations like the American Bar Association (ABA). In 2012, the ABA conducted an analysis of various probate proceedings across the country in an effort to better answer “How long does the probate process take?” The results of their analysis indicated that a general timetable for probate is between six and nine months for the average estate.
However, the ABA also made clear that the time necessary to complete the probate process depends on a multitude of factors.
Before diving deeper into the question of “How long is probate?” it is important to have a general understanding of what probate is and what is involved in this legal process.
What Is Probate?
Probate is a formal legal process that is designed to help organize and disburse an individual’s estate. The probate process is not something that can be done when someone is alive. It only occurs after someone has passed away.
When an individual passes, they can pass on either “intestate” or “testate.” These are fancy legal terms that simply refer to whether someone had a last will and testament when they died. If someone has a will, they are considered to have passed away testate. As a result, their property will be transferred to the loved ones and beneficiaries named in their will.
If, on the other hand, someone passes away without a valid will, then they are considered to have died intestate. As a result, their property will be distributed in accordance with the intestate succession laws codified in the state in which they resided. In either scenario, a probate court will be in charge of overseeing the probate process of the decedent’s estate. The probate court will also be empowered to address and resolve any legal disputes regarding the estate or the validity of a decedent’s will.
How Does It Work?
The exact steps and procedures involved in a formal probate process will fluctuate depending upon the state you reside. (Though you can check out our California-specific probate checklist) Nevertheless, there are some general steps that are fairly common in most states. For example, in most states, a formal document must be filed with a probate court in order to request a hearing to appoint either the executor named in a decedent’s will or an administrator for the estate (commonly referred to as a “personal representative”). Another common step is that notice of this hearing must be provided to the heirs and beneficiaries of the decedent.
Once a personal representative of the estate is appointed, they are obligated to provide notice to any known creditors of the estate. The personal representative will ultimately need to pay any creditor with a valid debt on the estate (typically using the estate’s assets) and will need to pay any applicable estate taxes before a court will agree to close the probate.
The personal representative is also required to complete an inventory of the estate’s assets (typically referred to as the “probate property”). The types of property subject to probate include:
· Any real property owned by the decedent independently;
· The decedent’s portion of any assets owned as tenants in common;
· Any jewelry, artwork, and/or motor vehicles.
It is important to note the property and assets not subject to probate as well. These assets typically include:
· Any property owned jointly with another;
· Proceeds from a life insurance policy;
· Proceeds from a retirement and/or savings accounts
· Proceeds from a “pay-on-death” account
· Proceeds from a “transfer on death” account
Once all debts are paid and the probate property has been distributed to any beneficiaries, the personal representative will need to notify the probate court. At this point, the probate court will review the work done by the personal representative. If the probate court approves, they will order the closure of the case.
How Long Does The Probate Process Take?
As indicated above, there are numerous steps and action items that must be completed during the probate process. There are also numerous hurdles and hiccups that occur on the way to getting the estate closed out. This is why, once again, the answer to the question, “How long is probate?” remains “it depends.”
It is important to note that some states offer simplified procedures for smaller estates (i.e., estates valued at or below a specific dollar amount). These simplified procedures enable probate to be streamlined in order to shorten the overall process from months to possibly just a few weeks.
The amount of time required to complete the probate process often depends on a combination of factors, including:
· The overall size and value of the estate;
· The amount of any taxes and debts that need to be paid;
· The total number of heirs; and
· Whether there are any contests or challenges to the validity of the will.
In situations where a beneficiary decides to contest the validity of a will, the probate process may take years, or even decades, to ultimately complete.
Speak to an Attorney Experienced in the Probate Process Today
If you lost a loved one and need help navigating the complexities of the probate process, Codi M. Dada is here for you. Codi can help take some of the burden off your shoulders so you can focus primarily on grieving. Codi can step in and help file the necessary legal documents with a probate court, assist with contacting relevant parties and creditors, and ultimately work to get the estate assets distributed to the appropriate beneficiaries.
If you reside near Novato, CA, or the surrounding areas, call us today to schedule a free, confidential consultation.