Probate is the court process in which a deceased person’s will is proved in court and determines the administration of that person’s estate. Multiple parties may have an interest in the probate process, including executors, personal representatives, possible heirs, and creditors. Many of the people involved in a probate proceeding immediately want to know how long the legal process will take. It can be difficult to determine with any certainty how complicated a case might become because of unique aspects of the estate. The length of time that a probate proceeding may last is difficult to determine, but people should generally assume that it will take at least four months. Creditors must be given 90 days, which alone accounts for a three-month period. The probate hearings most likely to be contested are typically estates of greater value or complexity.
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. 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.
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.
Variables That Can Impact Your Probate Timeline
There are a lot of factors that can result in the probate process speeding up or dragging on, but there are a handful of major influencers:
• State probate laws: The biggest reason there’s no definitive answer to the length of probate question is because it’s not nationally regulated, which means probate rules vary from state to state. State laws play a huge role in determining the length of probate; however they aren’t the only factors that could influence your probate timeline.
• The estate’s size: It makes sense that the size of the estate heading into probate plays a major role in how long the process will take. The more assets involved, the more decisions need to be made, the more paperwork that needs to be done, and so on. However, it’s not always the amount of assets that matters. Some state laws focus more on the overall value of the estate. The good news is that, if your probated estate is one of the 76% valued under $500,000, then your proceedings will likely be wrapped up within 14 months unlike those valued over $500K, which may take anywhere from 16 to 42 months to settle. Unfortunately, figuring out how much the decedent’s estate is worth according to your state’s probate laws all depends on the type of assets involved. While the laws defining which assets must go through probate, and which are non-probate assets, there are some assets which almost always require probate, unless steps have been taken to avoid it. One asset that almost always requires probate is a house. Probate proceedings are required when real estate is involved almost universally. However, some states still allow you to forego or shorten probate for low value properties.
• Conflict among the heirs: There’s another way to look at size in regards to probate that has nothing to do with an estate’s value and assets look at the number of heirs or beneficiaries involved. Even probate proceedings for lower-valued estates can become bogged down if there are multiple beneficiaries. This is especially true if there’s disagreement about how the estate should be handled. “How long it takes to sell a house during probate depends on the heirs, and whether or not everybody’s willing to work together to get the property sold”. It’s practically a law of nature that siblings will fight, but when you bring sibling bickering into the probate process, the proceedings come to a grinding halt. The biggest dispute beneficiaries have is when one party contests the will, but the disagreements don’t need to be that massive to delay probate. Picking fights over little things can derail the process too, such as arguing over whether or not to sell the house as-is, or how much to spend on replacing the carpet if you do decide to rehab before selling.
• Will vs. no will: Conflict between beneficiaries can often be resolved by referring to the will or letting the estate executor cast the deciding vote. But that’s not always the case. Sometimes the will isn’t clear or specific enough. Sometimes the will isn’t properly signed, witnessed, or accompanied by a notarized, self-proving affidavit and sometimes there is no will.
When there’s a will
Probate is typically easier and shorter when there’s a will involved. When a will is well done, the decedent will include specific instructions on how their estate is to be dissolved, and will often name the personal representative or executor they want to handle the proceedings. Just don’t make the mistake of assuming that having an existing, valid will means you can skip probate altogether. Some estates require probate simply to carry out the will’s terms and distribute the estate especially if the decedent has debts and creditors that must be paid off before beneficiaries can take ownership of the assets. And sometimes, mistakes within the will can trigger probate even if the existing will attempts to avoid the probate process. Maybe the decedent made mistakes while signing the will, or failed to have the signing witnessed, or perhaps they simply failed to update it. For example, maybe the decedent moved out-of-state after completing their will, which means the existing one won’t meet the new state’s probate laws. Of course, a will doesn’t need to be invalid for beneficiaries to contest it. Heirs could claim that the decedent was coerced into signing the will, or lacked the mental capacity to understand what they were signing, or even deceived about the contents of the will. While there are plenty of grounds to contest a will, it’s rarely advisable, especially when there isn’t actual fraud involved. The legal costs involved in contesting a will both to file the complaint and defend the will are more likely to deplete the estate’s value than resolve the issues.
When there’s no will
There are two myths swirling around about what happens when people pass away without a will:
• The state gets everything
• The estate must go through probate
Thankfully, that first myth is largely untrue. The only way the state gets your stuff is if you pass away without any beneficiaries to inherit. On the other hand, if the no-will decedent does have a spouse, children, siblings, or other surviving relatives, then they are the legal heirs, with or without a will. The state simply gets involved in the dispersal of the estate via probate. When there’s no will, estates usually fall under intestate succession laws. However, this can vary from state to state. However, no-will estates don’t always require probating especially for small estates. Some states have laws to simplify or remove probate requirements for small or low-value estates. Others even have provisions to allow larger estates to qualify for small estate simplifications. Simplifying or skipping probate isn’t possible in some states though if there’s a house involved.
• The estate includes a house: As previously mentioned, estates that include a house almost always require probate. This is in part because the decedent’s home is often sold during the probate process as part of the dissolution of the estate. And anyone who’s ever sold a home knows that the sale process is complex and potentially lengthy, even without the extra burdens added by probate. For starters, you can’t even hire a real estate agent until the court legally names you as the personal representative, or executor, for the estate. In fact, you’re legally not allowed to do anything with the house until that happens. What you can do prior to becoming named as the executor is contact a qualified probate agent to determine the home’s current market value because that value can influence whether or not an estate even requires probate at all. So, before starting proceedings through a probate attorney, the smart play is to consult with an experienced real estate agent without signing a listing agreement, which you are not legally allowed to do if the estate is headed into probate. There are ways for an estate to avoid probate even if there is a house attached, however most of these arrangements need to be made before your loved one passes away. For example, the decedent’s house can be placed into a living trust. Prior to passing away, the decedent remains the trustee and manager of the living trust. Once they die, their appointed successor can immediately manage and distribute the trust without waiting to be appointed as the personal representative by the probate court. However, a living trust isn’t needed when two spouses own a home together in joint tenancy, or if the decedent’s estate allows for a beneficiary deed, or the transfer on death deed (TOD). Even if arrangements haven’t been made to transfer property outside of probate, the probate process is much simpler and quicker if ownership of the house is simply being transferred from the decedent to an heir. However, when real estate is being sold during the probate process, the proceedings become more complex, and lengthy.
Do I Need A Probate Lawyer?
Yes. 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.
Probate Attorney Free Consultation
When you need legal help with your probate case in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506