One of the most common questions associated with settling a deceased person’s estate is “How long does it take to probate a will?” The answer depends on a variety of factors, but in general, probate could take anywhere from a few months to more than a year (or even years).
Before we get to what could affect the length of the probate process, though, let’s discuss what probate entails.
What is probate?
Probate is the court-supervised, legal process of settling the estate of a deceased person. If there was a last will and testament, the procedure serves to validate it and settle any disputes over inheritances; if the decedent died without a will, the court must appoint an administrator for the estate.
Probate also gives the executor named in the will the legal authority to oversee the probate estate, which includes distributing assets and paying debts.
How does probate work?
Although the details of the formal probate process vary by state, there are some general steps that are common in every jurisdiction.
First, in order to probate a will, the document must be presented to the probate court in order to schedule a hearing to appoint either the executor named therein or an administrator for the estate (also known as a personal representative). Notice of the hearing must be given to the decedent’s heirs and beneficiaries.
After the personal representative of the estate is appointed, he or she must give notice to all known creditors of the estate and also conduct an inventory of the estate’s assets, now called “probate property.” This can include real property (real estate, buildings, other fixed items), personal property (jewelry, clothes, other movable objects), stocks, bonds, business interests, and the like.
Once any objections are handled, and the probate hearing is over, the personal representative can pay creditors and any estate taxes as well as request permission to begin distributing estate property to heirs according to the will’s provisions (or according to state intestacy law if there was no will).
When all debts have been paid and property distributed, the court should be notified so the estate can be closed.
How long does it take to probate a will?
Generally speaking, probating a will should take less than a year, although in unfortunate cases it can take even longer. Some factors that can make for a longer probate process may include the following:
- Will contests challenging validity of the will and/or certain bequests
- “Complicated” assets such as business interests, which are trickier to distribute to heirs, as opposed to straightforward ones like bank accounts
- Taxable estate, mostly because an additional governmental entity (Internal Revenue Service) will be involved
On the bright side, though, some states do have simplified procedures for smaller estates (those with a value below a certain amount), which can shorten the length of the probate process considerably. New York, for example, uses the Small Estates Affidavit to allow assets of an estate to be distributed without getting the probate court involved through a simple sworn statement (affidavit) executed by the person(s) entitled to receive probate property.
Can an estate avoid probate?
But what about avoiding probate? Is it possible?
In the interest of having as fast and inexpensive probate process as possible, it may be desirable to skip it altogether. The good news for those wondering how to avoid probate is that there are several ways, such as the joint ownership of property (property passes directly to other owner) or by designating intended beneficiaries directly on life insurance, retirement, bank (“pay-on-death” or POD), and investment (“transfer-on-death” or TOD) accounts.
Creating a living trust is another option. The grantor (person writing the trust) funds it by putting in assets of his or her choice. The grantor retains control over the trust’s property until death or incapacitation. At that point, the trust is turned over to the successor trustee (previously chosen by the grantor) to distribute trust property according to the grantor’s wishes. All of this happens outside the probate process.
Do I need a probate lawyer?
Hiring a probate lawyer is not a legal requirement during the process, but if you are involved in probate, you might want to speak with an attorney for advice—especially if you are serving as an executor or administrator and you have questions about your role or actions as you probate an estate.
Overall, remember that the best way to make sure the probate process goes as quickly and smoothly as possible for your own estate is to plan ahead of time. You won’t be around to see it through, but your heirs will certainly be grateful.