For years, you have likely heard of the expense and potential hassle involved in the probate process. Although you have heard the word probate repeatedly, you may not know what exactly occurs during the process and how long it may take.
Although probate seems opaque, the exact steps of the process are not too difficult to understand. The problem comes when you try to convert the principles into action. Then, you can run into a number of roadblocks that cause frustration, expense, and delays.
There are several ways you might make the process of asset distribution somewhat easier on your family. The first is to hire a probate lawyer to lead you through the process. They will handle the details of the case, keeping things on track and ensuring the paperwork is correct. The probate lawyer can provide timely advice to the executor, making it easier for them to do their job administering the estate.
Your family may also want to take action ahead of time to try to avoid probate entirely. You may do that when you put your assets in a trust. Assets in a trust do not have to go through probate, since the trust is already the new legal owner of the assets.
You must complete estate planning before it is too late because you cannot make any legally binding documents or agreements when your cognitive health has started to decline, and you may lack the legal capacity. You should contact an estate planning lawyer who can plan ahead to the fullest extent possible.
What Happens in Probate?
Probate is the legal process by which the assets in the estate are retitled in the beneficiaries' names. Many steps need to occur over an extended period of time before that can occur.
The steps in the probate process are as follows:
- The executor begins the probate process by filing a petition in the court in the county where the deceased person resided before they died.
- The executor provides notice to creditors of the testator’s passing, and creditors have an opportunity to come forward and present their claims against the estate (it is their last chance for repayment before the estate is closed because debt does not transfer to the beneficiaries).
- The executor needs to take an inventory of all the assets in the estate and make a comprehensive list.
- All of the estate's debts and outstanding bills must be paid and settled. The liabilities must be paid before the remainder of the assets can be distributed to the beneficiaries.
- The assets are then retitled and distributed to the beneficiaries in accordance with their shares (they may receive actual property or money if the executor has chosen to sell the property).
- The executor will complete a final accounting of the estate and file it with the court.
- When the court approves the final accounting, the estate can be closed.
Although this process sounds methodical when presented step-by-step, the probate process still takes time, and many factors can lengthen the time frame even further.
The Length of Your Probate Process Can Vary
There is no one set answer for how long your estate will take to make it all the way through the probate process. Many factors at play affect the timing of your case, and many of them may be outside of your control.
You should not expect the probate case to be completed within six months. Numerous steps in the process keep probate from being completed too soon. For example, creditors are allowed a certain amount of time to respond to the notice and come forward with their claim for payment.
The timing of your case is also dependent on the docket in the probate court where it was filed. Probate courts are often special bodies outside the standard trial court system. The individual judges can have large dockets because there may be too few of them to hear the large number of cases filed. Even though there are some set timelines in your case, moving on to the next step may depend on the judge’s review, which they may not complete at the first opportunity.
You should probably figure that nine months is the shortest amount of time it might take for your case to go through probate (although it is possible for simpler cases to be completed before then). Realistically, probate cases may take around a year, but there is a wide range of outcomes, depending on both the individual court involved and the details of your case. The best that a probate lawyer can do is give you a ballpark estimate without giving you an exact timeline. Still, you should expect this timeline to change with unforeseen challenges or circumstances.
What May Take Time in the Probate Process
Many things in the probate process can take time and delay the process. You should know about the potential pitfalls ahead of time, especially when considering whether to invest in hiring a probate lawyer to help your family. It is always wise to hire a probate attorney or at least consult one before you begin the process.
Some of the potential delays in the probate process include:
- The family can have disagreements about the will, leading to a contest. For example, one family member may believe that the testator lacked capacity at the time they made the will or that they were under the undue influence of someone else. Will contests are extremely nasty and contentious affairs that can take years to resolve.
- You can make mistakes in completing the paperwork, which can cause the court to reject it and send it back to you. Then, you need to begin the waiting process again for the judge to review the newly corrected and filed paperwork.
- Larger estates often introduce more complicating factors because many assets might need to be valued. These difficulties can be exacerbated when the estate has unique assets that are hard to value, and competing valuations may exist for the assets.
- The assets that are a part of the estate might be located in several places. It may be difficult for all of these assets to go through probate because multiple courts may need to be involved. There may be several ancillary proceedings before the estate can be completely settled.
- The estate needs to file a final federal tax return before it can be settled. Depending on the complexity of the estate, it can take some time before the tax return can be completed and filed.
Further, the executor selected by the deceased person may simply not be up to the job. They may have difficulty making financial decisions on behalf of the estate or forging consensus among the family. If the executor takes too long to make decisions and complete the required tasks, it can seriously slow down the case in probate court.
Simplified Probate Procedures Can Save You Time
States often provide for simplified probate procedures when the estate's total value is below a certain threshold. These procedures are designed to introduce efficiencies for smaller estates, recognizing there may not be as much of a need for robust probate procedures when there is not as much money at stake. Then, there may be fewer creditors and not as much need for the same amount of legal safeguards and speed bumps that are built into the process for larger estates.
The amount of time that simplified probate procedures can take depends on the state because each one has different laws. Typically, probate can be completed in as little as a few months with these smaller estates. However, larger estates must go through the full probate process before the estate can be closed and distributed.
A Probate Lawyer Can Avoid Pitfalls
Although retaining a probate attorney may not eliminate all chances your case might become tied up in court, it can certainly lessen some of the risks that cause delays to your case.
You will not have to complete the paperwork on your own. Mistakes can slow down the probate process, and your probate lawyer will fill out the necessary paperwork in an error-free manner.
Your probate lawyer can better organize things at the outset of the process. They know what documents to request from you, so they can prepare the filings for the court. You will not have to do the research on your own and guess about what you need to submit and how to complete the paperwork.
In addition, if there are any disputes among family members, a probate attorney will represent your position in a proper manner to encourage a more prompt resolution of the disagreement. Of course, the probate attorney cannot represent all interested parties. Nonetheless, each party’s probate lawyer can speak to each other to keep disputes from becoming overly emotional and spiraling into expensive and time-consuming litigation.
Finally, a probate attorney can also advise the executor about how to properly perform their duties. The executor may have a number of questions about what they need to do to properly administer the estate. If there are any issues with what the executor is doing, it can potentially lead to a lawsuit, which adds months or years to the probate process.
Hiring a probate attorney early in the process is a great help to the executor, and it allows them to properly focus on their duties.
You May Want to Try to Avoid the Probate Procedures
Your family may want to consider various ways to avoid or minimize the probate process to the fullest extent possible. There are ways you can keep many or all of your assets out of probate, but they all require estate planning in advance.
You can use transfer on death accounts to automatically move the assets to your beneficiaries when you die. They just need to present a death certificate to the financial institution, and the assets should be divided in accordance with the account’s instructions. Transfer on death accounts may include:
- Bank accounts
- Life insurance proceeds
- Brokerage accounts
- Retirement accounts
If you do have these accounts, you must review your beneficiaries periodically because they do not change automatically when you have life events, such as a divorce.
Establish Trusts to Avoid Probate
You may also want to establish trusts to both serve your own financial needs and lower the burden on your family after you pass away. A trust is a legal entity established to take hold of assets. You appoint a trustee to manage the assets in accordance with the terms of the trust.
Trust assets stay out of probate because there is no need to retitle their ownership. As soon as the property is moved into the trust, it becomes titled in the name of the trust, meaning the probate process is unnecessary. Trusts can also help you realize certain tax benefits and help your family maintain harmony during a difficult time.
A trust is not necessary for every estate, but if you form a trust, you want to do so properly. Mistakes in the process can lead to trust disputes between beneficiaries or trustees. Just like a will contest, a trust-related dispute can cost time, money, and family harmony. Have an estate planning attorney form your trust for you.
Consult an Experienced Estate Planning and Probate Lawyer Now
You should consult with an estate planning attorney right now to learn about your options for potentially avoiding probate. They can formulate an estate plan to ease your family’s burden and give you more peace of mind.
However, you need to speak to an estate planning attorney today. You need to address estate planning when times are good because it can quickly be too late to make any changes once your health begins to decline.
Further, if a loved one has recently passed away, your family should never hesitate to consult a probate lawyer. The right legal representation can keep your case on track and running smoothly as much as possible. Start protecting yourself with the right probate lawyer now.