James R. Balmforth: How Long Does The Probate Process Take?

If you find yourself asking about the length of the probate process from start to finish, sit down and buckle up because unfortunately the process is an unpredictable and lengthy legal procedure. The length of the probate process timeline depends on several factors. For example, the size of the decedent’s estate and level of complexity, whether or not the decedent left behind a will and if it’s contested, outstanding debts and obligations, and the number of proposed heirs can all add several months or years to the procedure. Other factors may include tax complications, non-probate lawsuits, and probate procedural requirements. It’s important to note that procedural requirements regarding probate vary by state. Additionally, the majority of courts have local court rules. It is a good idea to research probate law and various probate attorneys ahead of time. Researching probate will facilitate an understanding of various state requirements, local court rules, and key probate terms. In turn, this will help you understand what is involved for the probate process. Another benefit of researching probate law and contacting a probate attorney regarding the process details of probate is that you will be able to determine a timeline tailored to the specific circumstances of your probate matter.

The time estimates will not apply in every situation since specifics of the probate process differ with every estate; however our probate timeline can act as a reference tool for approximating how long your probate process may take and how long it may be until you can access your inheritance. If you are currently involved in probate, you may be able to identify which stage of the probate process you are in by reviewing the timeline. Whether you are currently involved in probate or you anticipate being involved, this probate process timeline can give you an idea of just how much money you may need in order to withstand the entire duration. If you find yourself low of funds, IFC can help you get an inheritance advance in less than a week. The easiest way to understand the probate timeline is to look at all of the major steps most probate cases will require and how long each one is estimated to take. We’ll also take a look at when and how to handle the parties involved in the probate process.

• Notice of Probate: 1-2 Months, Even if all beneficiaries of the decedent’s will attended the funeral and are aware that you’ll be handling the estate, this fact alone isn’t enough for the probate courts. You’ll need to issue a formal notice of probate to all interested persons, which means all beneficiaries and heirs. Depending upon local laws, you may have up to three months to notify interested parties after your probate petition is accepted by the courts at your first hearing. However, it’s best to get this done prior to your hearing so that you can obtain a waiver of process and consent to probate from all interested parties. This waiver and consent tells the court that all beneficiaries acknowledge the validity of the will (if there is one) and are willing to have you act as the executor or personal representative With this consent, they are waiving their rights to contest the will or any legal action you may take in regards to the estate. Having these waivers at your first hearing increases your chances of being awarded the rights of independent administration which means the court will be less involved in your handling of estate assets. This process can take as little as a few days if you have current contact information for all beneficiaries and they are willing to sign the waivers. If you need to search for the beneficiaries or if any parties decide to contest the will, this can take one to two months or longer.

• Petition to Probate: 1-4 Months, unless the value of the estate is extremely low and contains no property, you will likely need a probate attorney to file the petition to probate the decedent’s estate. Once this petition is filed, you’ll receive a court date for your first hearing which will be set several weeks or months out based on the court’s availability. How long this step takes depends largely upon how soon you can get a court date scheduled. Prior to this hearing, you are not officially the executor or personal representative of the decedent’s estate, so you cannot legally conduct estate business, such as signing a listing agreement with a real estate agent for estate property. However, you can bring on a probate experienced real estate agent to help you prepare for the sale of the property by assessing the property’s value, running comparables in the neighborhood, determining the home’s value, connecting with cleaning services, contractors, and other vendors. Provided all of your petition paperwork is in order, the probate court judge will name you as the personal representative of the decedent’s estate by issuing letters of administration if there is no will, or letters of testamentary if there is a will. At this time, the judge will also decide to grant you either the rights of independent administration or dependent administration.

• Notice to Creditors, Debts, and Taxes: 4-6 Months, Any debts owed by the decedent prior to death (such as credit card bills and mortgage payments) need to be paid out of the balance of the estate. These funds come from estate assets such as existing bank accounts, sold off stocks, life insurance benefits and the proceeds from the probate property sale. In order to determine any debts owed, you’ll need to issue a formal notice to creditors which, depending upon state law, may need to be published in a local newspaper for a set period of time. You should also go through the decedent’s financial paperwork for any bills and request a credit report for decedent to identify potential creditors. This creates a paper trail for the courts to show you made appropriate efforts to identify any potential debt claims against the estate. Once you’ve given all creditors notice, they have a set period of time in which to make a debt claim. While you’re sorting through financial records for creditors, you should also be on the lookout for tax documents. As part of closing the estate, you’ll need to file the final individual tax returns for the decedent and you may also have to file estate or gift taxes. All tax transactions must be completed before probate can close.

• Inventory and Appraise Assets: 1-3 Months, One major task that needs to be done during probate is the inventory of assets. For this you’ll need the official probate forms from your state as this document will become a part of the official records of the estate that must be filed with the final petition at the close of probate. It’s important to note that some estate assets are not subject to probate, so check with your probate attorney as you compile your inventory. This inventory helps the probate court determine the cash value of the estate, based in part on the date of death value or the alternative valuation date which is within six months after the date of death. Generally, a professional appraisal is needed in order to determine these valuations, especially for real estate. This step can take anywhere from a few weeks to several months, depending upon the size of the estate and how long it takes to arrange the asset appraisals.

• Probate Property Sale: 2-6 Months (or More) When the estate contains real estate you intend to sell during probate, the procedures of the probate sale depends upon whether you were awarded independent or dependent administration rights. If you’ve been granted independent administration rights, there is little to no court oversight during the sale of probate property. The sale precedes much like a traditional real estate sale; however, there are differences in procedure, contracts and disclosures. This is why having a probate experienced real estate agent can be extremely helpful. A personal representative with independent administration rights is permitted to list, accept an offer and close on the property sale without approval from the probate court. All of the probate sale paperwork simply needs to be included in the final accounting paperwork. These probate sales follow the timeline of a traditional real estate sale, which currently takes take an average of three weeks to receive and accept an offer and an average 47-day escrow period. If you’ve only been granted dependent administration rights, the probate sale process is significantly different and longer. While you will be able to list the home and even accept an offer, you cannot complete the sale on your own. The probate court will need to approve and oversee the sale with a court confirmation hearing. At the hearing, your probate attorney will present the offer you’ve accepted to the court however; the court will not immediately accept this offer. Instead, the probate judge will open the overbid process, which proceeds similar to an auction. Any interested buyers may then put in a bid for the property, starting at a percentage above the presented offer—as set by the court per state laws. The best offer is accepted and confirmed by the court during this hearing. A probate sale with court confirmation adds another several weeks or months to the timeline. Just as in a traditional sale, receiving and accepting an offer takes several weeks. Once you’ve accepted one, you can schedule for the court confirmation hearing often several weeks or months out. In some states, you may even be required to remarket the property at the accepted offer price for 30 to 45 days before you can have your court confirmation hearing. All told, these extra steps add anywhere from a month or more to the timeline. Whether yours is a simple probate sale or a more complex one requiring court confirmation, Utah advises hiring an experienced probate real estate agent: It’s nicer if the agent has significant probate experience so that they know the differences between a traditional sale and a probate sale. Finding an agent with accreditation or who can show that they’ve done a number of probate sales would definitely be advisable.

• Final Accounting: 1-2 Months, while you are selling the property and settling account debts, you need to keep track of all the paperwork generated while conducting business transactions on behalf of the decedent’s estate. All of this documentation must be compiled and presented to the probate court for review. This process is generally known as the final accounting. Although the final accounting forms and requirements vary from state to state, these forms basically present the financial information of the estate. This includes the initial cash value of the estate, the debts, fees and taxes paid, and deposits received such as the proceeds from the property sale. Along with the final accounting forms, you’ll also submit other documentation including your asset inventory, appraisals, and the probate sale contracts. You should also include any signed receipts for any tangible property you’ve distributed to beneficiaries, such as family heirlooms bequeathed in the will. Once assured that all the paperwork is in order, your attorney will file another petition for a final hearing to distribute remaining funds and closes the estate.

• Final Distribution and Closing the Estate: 1-3 Months, during the probate process, you may distribute some assets, like tangible personal property. However, in most states you are required to wait to distribute financial assets such as proceeds from the property sale until the final probate hearing. This is to allow the probate court to review your final accounting to ensure that every effort was made to identify creditors and pay the decedent’s debts before the estate is dissolved. If a credible debt claim is made against the estate, the court can hold the executor personally liable for failing to properly notify the creditor or distributing funds to beneficiaries before all debts were paid. Like the initial petition to probate, the number of weeks or months between filing your petition and that final hearing largely depends upon the probate court’s availability. Provided all of your documentation checks out, the probate judge will rule for probate to be closed and the estate dissolved. At that time, you will use the estate funds from the estate to pay final expenses, including court costs and attorney’s fees. The remaining balance is then distributed to the beneficiaries and your duties and responsibilities as the personal representative are concluded. The timeline of the probate process is definitely intimidating when you look at how long each step can take. However, many of these steps such as sending the notice to creditors and the probate property sale can happen simultaneously. With the help of a top-notch attorney and an experienced probate real estate agent, you can considerably shorten the probate timeline. Unless the deceased had very limited assets, someone has to either get probate or letters of administration.
Probate is a court order confirming that the will is the right one. It also gives the executors the power to deal with the deceased’s assets. It usually takes about a month to get probate. If there is no will then you will need to see your lawyer to apply for letters of administration. This is a court order, similar to probate, giving the person appointed power to deal with the deceased’s assets. Again this usually takes about a month. Once probate or letters of administration have been granted the clock starts running. The executor/administrator then takes control of the deceased’s assets by closing any bank accounts and transferring any assets into the names of the executors/administrators. Once this is done the executor/administrator can give them to the people who are to receive them (“the beneficiaries”). Before any assets can be handed out the executor/administrator has to make sure that any debts or claims have been paid. Debts are obligations that the deceased entered into while alive.
Claims might come from:-

• Testamentary promises: Sometimes if the deceased made a promise to someone before death then this promise can be enforced against the deceased estate.

• Family protection claims: These are claims by close relatives where the will has not provided for their adequate maintenance and support.

• Claims by spouses and partners: These people have an option to either take what the will or administration gives them or to claim what they would be entitled to under the property sharing rules.
The executor/administrator must hold onto the assets for six months after the grant of probate or letters of administration to allow time for these claims or debts to be notified. If the assets are distributed before then the executor/administrator may be personally liable to pay the debt of claim.

Therefore the minimum time to get an estate distributed after the date of death is:
• The length of time it takes after death to file the court application +
• About a month for the court to grant the probate/letters of administration +
• The six month claim period +
• The time it takes to resolve and claims or disputes.

It is sometimes possible to distribute the estate during the six month claim period if the executors/administrators are certain that there will be no claims and they are prepared to take the risk that they will be liable to pay any claims that do come in. They may get the beneficiaries to promise (in a document called an indemnity) to repay money if it is needed. There can be other delays resulting from any delays in cashing up any assets, particularly in these days of a slow property market and where any assets include investments which are in receivership or moratorium. Also if the cause of death has to be established by a coroner this can delay payment of some assets like life insurance policies.

Probate proceedings are used to validate a will, account for the deceased person’s assets, settle estate disputes and give legal authority to the named executor. An executor is a person specified in the will by the deceased person to oversee the estate and carry out the final directions and wishes. If the executor is unable or unwilling to perform as such, the probate of the will may be delayed until the successor executor named in the will, if any, steps forward. Once an executor is named, the matters of the estate can be handled, including the maintenance of assets and payment of bills. Delays in probate can cause the estate to lose assets, such as a house the deceased person owned being foreclosed on because the mortgage was not paid. The executor may be able to receive an order in court allowing him to perform limited actions to protect estate assets, but the court has the final say.

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When you need legal help with a probate case in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help with Estate Planning. Probate Case Administration. Estate Litigation. Probate Mediation. And Much More. We want to help you.