The process involves a lot of steps, all of them necessary to transfer ownership of assets from the deceased and on to a beneficiary (or beneficiaries). The decedent’s taxes and outstanding debts must be paid before this transfer can happen, of course, and that takes time, too. All this occurs under the supervision of the court, and this can further slow things down. The process can stall entirely for days or weeks when complications arise. Learn more about factors that can slow a probate proceeding, and what you can do to move things along.
Where the Executor Lives
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 a larger estate. Where the personal representative lives in relation to where the attorney is located might not seem like a big deal with so many modern communications tools close at hand. But the distance between the personal representative and the attorney can indeed make a difference. A personal representative who is local to the attorney can drop by the attorney’s office to take care of problems relatively quickly. But quick meetings just can’t happen when the personal representative lives far from the office or in another state.
The Number of Beneficiaries
Probate will take longer as the number of estate beneficiaries increases, particularly if they, too, live far from the attorney’s office or far 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.
Whether the Beneficiaries Agree or Disagree
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 attorneys may nitpick over every action the executor takes.
Whether the Will Is Contested
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.
The Number of Debts Owed
Payment of taxes and a decedent’s debts are a major component of the process because transfers of assets to beneficiaries can only occur after all this has been accomplished. And payments 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 any 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 varies from state to state, from just 120 days in Texas, to as long as seven months in New York, and an entire year in Massachusetts. Closure of the estate will be delayed until this period has passed and all claims have been resolved.
The Presence of 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 the 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.
When Estate Taxes Are Owed
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 several 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 estates with values greater than $11,700,000 in 2021 and $12,060,000 in 2022 are subject to the tax. But 12 states and the District of Columbia also impose state-level estate taxes, and some of their thresholds are much less than the federal exemption. Reckoning and paying these taxes can delay the process if the deceased died owning property in any of them.
Asset Complexity
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.
How To Bypass Probate
You can avoid probate of your estate entirely by moving 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. 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.
Bottom Line: How Long Does Probate Take?
The probate process can take well under 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.
